Datasets:

---

jhu-clsp

/

CLERC

like 3

Follow

Center for Language and Speech Processing @ JHU 68

[ { "docid": "13524097", "title": "", "text": "federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. — U.S. at —, 114 S.Ct. at 2372 (footnote omitted). Heck requires the district court to consider “whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate, that the conviction or sentence has already been invalidated.” Id. In addition to convictions and sentences, Heck applies to proceedings which eall into question the fact or duration of parole. See Cotton v. Texas Dep’t Criminal Justice, No. 94-10532, 35 F.3d 560 (5th Cir. Aug. 26, 1994) (parole proceeding) (unpublished). Cotton indicates that Heck should also apply to proceedings that call into question the fact or duration of probation. A judgment in favor of Jackson on his illegal seizure claim would necessarily imply the invalidity of the revocation of his probation and parole. It logically follows that Heck applies to Jackson’s probation and parole revocation proceedings. Jackson has not demonstrated that his current sentence has already been invalidated. He does not allege that any revocation proceeding has been reversed, expunged, set aside by a state court, or called into question by a federal court’s issuance of a writ of habeas corpus. Thus, Jackson’s action is not cognizable under § 1983 at this time, and we need not address the arguments Jackson has raised on appeal. The appeal is DISMISSED WITHOUT PREJUDÍCE. . Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). . See Jackson v. City of Beaumont Police Dept., 958 F.2d 616, 618 (5th Cir.1992). . — U.S. —, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). . See Adams v. Hansen, 906 F.2d 192, 194 (5th Cir.1990) (Spears hearing is not a trial on the merits but is in the nature of an amended complaint or more definite statement). . Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, 1832-33, 104 L.Ed.2d 338 (1989);" } ]

[ { "docid": "12868047", "title": "", "text": "claim for malicious prosecution. If a plaintiff can set forth the elements of common law malicious prosecution along with “some deprivation of liberty consistent with the concept of ‘seizure,’” plaintiff has clearly demonstrated a violation of the constitution. Brockington v. City of Philadelphia, 354 F.Supp.2d 563, 569 (E.D.Pa.2005) (citations omitted). Third Circuit law is unclear as to whether all of the elements of a common law claim for malicious prosecution must be met in a section 1983 malicious prosecution claim, but, at a minimum, a plaintiff must allege “termination of the prior criminal proceeding in favor of the accused.” Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In the present case, Bush has not alleged that the criminal proceeding ended in his favor. To the contrary, his exhibits indicate that he was convicted, the conviction was affirmed on appeal, and a petition for allocatur was denied. (Mot. Ex. 1 at 1.) Furthermore, his complaint refers to a post conviction hearing, which means that there was a conviction. (Compl.) Therefore, the criminal proceed ing did not end in Bush’s favor and there is no claim for malicious prosecution. Bush does not have a claim for unconstitutional conviction or imprisonment. In Heck v. Humphrey, the Supreme Court wrote: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. In other words, if a judgment in plaintiffs favor implies the invalidity of his or her conviction or imprisonment, plaintiff must show that the conviction or sentence was reversed or in some way declared invalid by an authorized tribunal. If a judgment in favor of the plaintiff in a section 1983 action" }, { "docid": "22083594", "title": "", "text": "for summary judgment on several grounds, among them that Heck v. Humphrey bars Smith’s § 1983 action and that the challenged use of force — the pepper spray and police dog — was appropriate and reasonable under the circumstances. The district court granted summary judgment on the basis that Heck barred Smith’s § 1983 action. Judgment for the defendants was entered, and Smith filed a timely Notice of Appeal. II. DISCUSSION A. The Alleged Heck v. Humphrey Bar In Heck v. Humphrey, the United States Supreme Court held that: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus .... A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed .... 512 U.S. at 486-87, 114 S.Ct. 2364. Heck says that \"if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed.\" Smithart v. Towery, 79 F.3d 951, 952(9th Cir.1996). As the Supreme Court explained, the relevant question is whether success in a subsequent § 1983 suit would \"necessarily imply\" or \"demonstrate\" the invalidity of the earlier conviction or sentence under § 148(a)(1). Heck, 512 U.S. at 487, 114 S.Ct. 2364; see also Cunningham v. Gates, 312 F.3d 1148, 1153-54 (9th Cir.2003) (as amended) (Heck bars suits \"based on theories that `necessarily imply the invalidity of[the plaintiff's] convictions" }, { "docid": "22762357", "title": "", "text": "a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.1998) (per curiam). DISCUSSION I. Heck v. Humphrey Under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a state prisoner may not bring a claim for damages under 42 U.S.C. § 1983 “if a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction.” Id. at 487, 114 S.Ct. 2364. As the Supreme Court noted, the most obvious example of an action barred by Heck is one in which the plaintiff actually “seek[s] damages directly attributable to conviction or confinement.” Id. at 487 n. 6, 114 S.Ct. 2364. But even when the plaintiff does not seek such damages, his suit may be barred if, for example, he must negate “an element of the offense of which he has been convicted” in order to prevail, id., or if he contends that the statute under which he was convicted is unconstitutional. The Court explained in a footnote, however, that its holding would not necessarily preclude a Fourth Amendment claim of illegal search and seizure: For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, ... and especially harmless error, ... such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, ... which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned). Id. at 487 n. 7, 114 S.Ct. 2364 (citations omitted) (emphasis in original). Because an illegal search or arrest may be followed by a valid conviction, see id., a successful § 1983 action for Fourth Amendment" }, { "docid": "12275707", "title": "", "text": "defend its case. Id. at 322-24, 106 S.Ct. 2548. ' In analyzing whether a question of fact exists, the court construes the evidence in the light most favorable to the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of some factual dispute does not defeat a summary judgment motion, however; there must be a genuine issue of material fact for the case to survive. Id. at 247-48, 106 S.Ct. 2505. 1. Heck v. Humphrey One issue defendants have raised as to plaintiffs Fourth Amendment claim should be addressed at the outset since, if decided in defendants’ favor, it would seem to dispose of the entire action without further discussion. Defendants claim that plaintiffs Fourth Amendment claim is barred under the rule of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court held: ... in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 512 U.S. at 486-87, 114 S.Ct. 2364. In this case, plaintiffs conviction has not been overturned or set aside. Although his conviction on the original charges was reversed, he later entered into a plea agreement with the State that resulted in misdemeanor convictions for the same conduct. Thus, under Heck, it would seem that plaintiffs action should be barred as to those claims that would have rendered his underlying conviction invalid. In response, plaintiff points out that Heck is not bar to § 1983 claims that “would not necessarily imply that" }, { "docid": "16830727", "title": "", "text": "as being involved in any denial of medical treatment. His only specific reference to any individual concerning a denial of medical treatment is to [someone], who has never been served with the Complaint in this action. Because Plaintiff fails to allege or offer specific facts linking either Defendant [police officers] to his requests and alleged denial of medical treatment, Defendants are entitled to summary judgment on this issue.”). III. ALL DEFENDANTS SHOULD BE GRANTED SUMMARY JUDGMENT ON MCALLISTER’S FALSE ARREST AND MALICIOUS PROSECUTION CLAIMS UNDER HECK V. HUMPHREY The Supreme Court held in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994), that in order for a § 1983 plaintiff who has been convicted to recover damages for an unconstitutional conviction or imprisonment, including false arrest, malicious prosecution, or-other harm which would invalidate the conviction or sentence, the plaintiff must prove the conviction or sentence has been reversed or otherwise declared invalid: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Id. at 486-87, 114 S.Ct. at 2372 (fn.omit-ted). The Supreme Court explained that permitting a § 1983 attack on a conviction that still stands would “expand opportunities for collateral attack”" }, { "docid": "19063970", "title": "", "text": "any time if the court determines that ... the action or appeal is frivolous or malicious.” 28 U.S.C. § 1915(e)(2)(B)(i) (emphasis added). Thus, a frivolous complaint — one that “lacks an arguable basis either in law or in fact” — must be dismissed pursuant to § 1915(e)(2)(B)®. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). B. Plaintiffs Complaint must be dismissed as frivolous because he may not bring a civil suit to recover damages for harm caused by actions whose unlawfulness would render his first-degree murder conviction invalid. In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court held that one who has been convicted of a crime may not ordinarily recover damages pursuant to 42 U.S.C. § 1983 for “harm caused by actions whose unlawfulness would render [his] conviction or sentence invalid.” Id. at 486, 114 S.Ct. 2364. The only qualification to this otherwise broad prohibition is if the plaintiff can “prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486-87, 114 S.Ct. 2364. From this rule emerges the following directive: “[T]he district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487, 114 S.Ct. 2364. Although Heck, on its face, addresses only actions brought under § 1983, the United States Court of Appeals for the District of Columbia Circuit has expanded the contours of Heck to reach § 1983’s federal analog, the Bivens claim. See Williams v. Hill, 74 F.3d 1339, 1340-41 (D.C.Cir.1996) (per curiam); see also Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.1995) (per curiam) (extending Heck to Bivens actions); Tavarez v. Reno, 54 F.3d 109" }, { "docid": "22087683", "title": "", "text": "procedures, resulting in the prisoner’s conviction and imprisonment. Heck, 512 U.S. at 478-79, 114 S.Ct. 2364. The United States Supreme Court affirmed the lower court’s dismissal of the action, and held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would ren der a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Id. at 490, 486-87, 114 S.Ct. 2364 (internal footnotes omitted) (emphasis added). The Supreme Court directed that “when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Id. at 487, 114 S.Ct. 2364. “[I]f the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id. (internal footnotes omitted). We conclude that Heck v. Humphrey is not a bar to the present action. By the very specific language contained therein, Heck v. Humphrey applies only to those cases in which a complaint alleges that a defendant engaged in conduct “whose unlawfulness would render a conviction or sentence invalid.” Id. at 486, 114 S.Ct. 2364. The holding in Heck applies only where “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Id. at 487, 114 S.Ct. 2364. Here, the gravamen of the complaint is that the defendants returned Weilburg to Illinois in violation of state and federal law, by ignoring established extradition procedures and effectively kidnapping Weilburg. Such allegations, • if proven, would not invalidate Weilburg’s incarceration in Illinois. To the contrary, “[tjhere is nothing in the Constitution" }, { "docid": "14162926", "title": "", "text": "appears to concede that the one-year statute of limita tions bars him from basing a claim on any of the conduct that Defendants assert occurred prior to his arrest on October 27, 1993. Because Mr. Zupan has not raised any argument or presented facts to the contrary, the Court grants Defendants summary judgment as to their liability for any conduct that occurred before October 27,1993. III. The Arrest and Search Claims A. Heck v. Humphrey Defendants argue that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars Mr. Zupan from bringing claims based on his parole violation arrest and search. In Heck, the Supreme Court held that, in order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other injuries caused by actions whose unlawfulness would render the conviction or imprisonment invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at pp. 486-187, 114 S.Ct. 2364 (emphasis in original) (footnote omitted). . The Heck Court held further that when a State prisoner seeks damages in a § 1983 suit, “the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at p. 487, 114 S.Ct. 2364. If the district court determines, however, that the plaintiffs action would not necessarily demonstrate the invalidity of the criminal judgment against the plaintiff, it should allow the § 1983 action to proceed. Id. The Fifth Circuit in McGrew v. Texas Board of Pardons and Paroles, 47 F.3d 158 (5th Cir.1995), held that an" }, { "docid": "9363421", "title": "", "text": "his arrest and the subsequent searches of his home were illegal. Such a ruling necessarily draws into question the validity of his conviction. The March 13, 1994 arrest and search resulted in the seizure of a machine gun and silencer that were the basis for plaintiffs subsequent possession convictions. If the items were discovered and seized in violation of the Fourth Amendment, as plaintiff contends, the evidence should have been excluded from his criminal trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Plaintiff has not argued that the machine gun and silencer would have been admissible regardless of the alleged Fourth Amendment violation. Now Copus — with assistance from his ami-cus — appeals the district court’s dismissal of his suit on summary judgment. II. The primary issue on appeal is whether Copus’ § 1983 claim is barred by the Supreme Court’s decision in Heck, v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Under Heck, a “district court must consider . whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated,” 512 U.S. at 487, 114 S.Ct. 2364. Copus’ underlying conviction on weapons charges has not been invalidated (in fact, we affirmed it on direct appeal, see 93 F.3d 269 (7th Cir.1996)). So the issue before us is whether the district court correctly concluded that a judgment in favor of Copus in his civil suit alleging an unlawful search and seizure under the Fourth Amendment necessarily would imply the invalidity of his confinement, which in large part was possible because of the fruits of that search. We review this legal question de novo, the same standard we apply in reviewing the district court’s grant of summary judgment in favor of the defendants in this case. See Larsen v. City of Beloit, 130 F.3d 1278, 1281 (7th Cir.1997). We need not speculate concerning which claims under § 1983 would not “necessarily” imply" }, { "docid": "23303851", "title": "", "text": "of racial profiling. Based on the State’s motion, Gibson’s conviction was vacated, and all charges against him were dismissed. Gibson alleges that his conviction was overturned because the 1992 stop resulted from unlawful racial profiling and the practice of racial profiling by the state police had not been disclosed to him. On November 14, 2002, more than ten years after his arrest, Gibson filed a § 1983 complaint claiming, as relevant here, a violation of his right to be free from unlawful search and seizure under the Fourth Amendment. 2. Discussion In Heck, the Supreme Court held that to maintain a claim for damages for an “allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, [or] declared invalid by a state tribunal.” 512 U.S. at 486-87, 114 S.Ct. 2364. Under Heck, § 1983 claims for damages attributable to an unconstitutional conviction or sentence do not accrue until the conviction or sentence has been invalidated. Id. at 489-90, 114 S.Ct. 2364. The Supreme Court directs district courts to determine in each case whether a particular § 1983 claim is deferred under Heck. Id. at 487, 114 S.Ct. 2364 (requiring district courts to “consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence”). The Court offered guidance on the question of when a § 1983 claim implies the invalidity of a conviction or a sentence, and is thus deferred, in two separate footnotes in Heck. In footnote six, the Court provided an example of when a defendant’s § 1983 action would implicate the validity of his conviction. In the example, a person is convicted and sentenced for resisting arrest, an offense ordinarily requiring proof that the defendant intentionally prevented an officer from making a lawful arrest. The defendant then brings a § 1983 action for damages against the officer claiming the officer arrested him in violation of his Fourth Amendment" }, { "docid": "22372696", "title": "", "text": "2. Heck bars the Portillo Plaintiffs and Gaxiola and Gastelum from bringing suit. The Portillo Plaintiffs—Portillo, Avalos, Martinez, Delgado, and Carrizo-za—and Gaxiola and Gastelum allege that Defendants falsified the warrant application for the wiretap that intercepted their telephone calls, and they challenge the constitutionality of the handoff procedure. They seek damages under their judicial deception claim and both declaratory relief and damages under their handoff claim. The district court ruled that Heck, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383, barred Plaintiffs’ judicial deception claims but did not bar their handoff claims. In Heck, the Supreme Court held that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 512 U.S. at 486-87, 114 S.Ct. 2364 (emphasis added) (footnote omitted). If “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” then “the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487, 114 S.Ct. 2364. In addition, “the principle barring collateral attacks—a longstanding and deeply rooted feature of both the common law and [the Supreme Court’s] own jurisprudence—is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated.” Id. at 490 n. 10, 114 S.Ct. 2364. The Supreme Court later clarified that Heck’s principle applies regardless of the form of remedy sought. “[A] claim for declaratory relief and money damages ... that necessarily implies] the invalidity of the punishment imposed[ ] is not cognizable under § 1983.” Edwards v. Balisok, 520 U.S. 641, 648," }, { "docid": "22863471", "title": "", "text": "rights by knowingly coercing and eliciting false testimony against him, making false statements to the press, and threatening defense witnesses to keep them from testifying. In claim thirteen, Robinson alleged that Jones violated his Fourth Amendment rights by coercing two government witnesses to give false testimony that was used as a basis for obtaining search warrants executed at Robinson’s home and place of business. Jones moved to dismiss the complaint on the ground that it was barred by the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The district court granted the motion to dismiss Robinson’s complaint, and Robinson appeals. In his timely appeal, Robinson challenges the district court’s judgment dismissing claim thirteen of the complaint. Initially, we note that Robinson does not reassert on appeal claims one through twelve as set forth in his complaint. Issues which were raised in the district court, yet not raised on appeal, are considered abandoned and not reviewable on appeal. Enertech Elec., Inc. v. Mahoning County Comm’rs, 85 F.3d 257, 259 (6th Cir. 1996). Upon de novo review, we conclude that the district court properly dismissed Robinson’s complaint. In Heck, supra, the Supreme Court held that in order to recover damages for an allegedly unconstitutional conviction, or for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid,” a prisoner must show that the conviction or sentence has been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 486-87,114 S.Ct. at 2372. While Heck concerned an action brought under 42 U.S.C. § 1983, we adopt the rule espoused by the Fifth and Eleventh Circuits that the Heck holding applies equally to an action brought under Bivens. See Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.1995); Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994). Robinson is, therefore, unable to establish the elements necessary to sustain a Bivens action unless and until" }, { "docid": "12868048", "title": "", "text": "the criminal proceed ing did not end in Bush’s favor and there is no claim for malicious prosecution. Bush does not have a claim for unconstitutional conviction or imprisonment. In Heck v. Humphrey, the Supreme Court wrote: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. In other words, if a judgment in plaintiffs favor implies the invalidity of his or her conviction or imprisonment, plaintiff must show that the conviction or sentence was reversed or in some way declared invalid by an authorized tribunal. If a judgment in favor of the plaintiff in a section 1983 action would not “necessarily” imply the invalidity of his conviction or sentence, the Court in Heck held: [T]he § 1983 plaintiff must prove not only that the [allegedly unconstitutional action] was unlawful, but that it caused him actual compensable injury ... which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned). Heck, 512 U.S. at 487 n. 7, 114 S.Ct. 2364. In the present case, regardless of whether a judgment in favor of Bush would necessarily imply the invalidity of his conviction or sentence, his complaint must be dismissed at this time. If judgment in Bush’s favor in the present case would necessarily imply the invalidity of his conviction or sentence, then the complaint must be dismissed, because Bush’s allegedly unconstitutional conviction has not been reversed, expunged, declared invalid, or called into question by a writ of habeas corpus. Heck, 512 U.S. at 487, 114 S.Ct. 2364. If judgment in Bush’s favor in the present case would not necessarily imply the invalidity of his conviction or" }, { "docid": "8171116", "title": "", "text": "the “Heck preclusion doctrine” or the “Heck bar” is based on the following paragraph in the Supreme Court’s opinion: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. 512 U.S. at 486-87, 114 S.Ct. 2364 (footnotes omitted). In Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir.2005) (en banc), we recognized that ‘“if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed.’ Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.1996).” Consequently, “the relevant question is whether success in a subsequent § 1983 suit would ‘necessarily imply’ or ‘demonstrate’ the invalidity of the earlier conviction or sentence....” Id. quoting Heck, 512 U.S. at 487, 114 S.Ct. 2364. In addressing this question in City of Hemet, we recognized that an allegation of excessive force by a police officer would not be" }, { "docid": "22407947", "title": "", "text": "of S. Cal., 159 F.3d 1178, 1181 (9th Cir.1998). We may affirm the district court’s dismissal for failure to state a claim on any basis supported in the Record. Romano v. Bible, 169 F.3d 1182 (9th Cir.1999). A district court’s refusal to exercise supplemental jurisdiction is reviewed for abuse of discretion. San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir.1998). III. Analysis A. 42 U.S.C. § 1983 Plaintiffs contend that the district court improperly held that Heck barred their § 1983 complaint. We agree. However, we affirm the district court’s dismissal on alternate grounds because plaintiffs failed to state a § 1983 claim. 1. Heck v. Humphrey In Heck, the Supreme Court held that: in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, ... a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. 512 U.S. at 486-87, 114 S.Ct. 2364 (footnote omitted). Therefore, a “district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487, 114 S.Ct. 2364. However, the Court pointed out that if a “plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id. (footnotes omitted). The Court offered an example of a lawsuit that would not be barred by the Heck doctrine: For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state" }, { "docid": "21395828", "title": "", "text": "Conviction The Supreme Court has recently determined that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994). Thus, the plaintiffs § 1983 claim must be evaluated on the following basis: [The Court] must consider whether a judgment in favor of plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the [Court] determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to suit. Id. 512 U.S. at 487, 114 S.Ct. at 2372-73. The gravamen of plaintiffs complaint is that he was “framed” for a murder he did not commit in retaliation for his political involvements. Most of plaintiffs claims arising out of this alleged scenario directly call into question the validity of his conviction, a conviction that has not been “reversed, ... expunged” or otherwise invalidated. As required by Heck, these claims will be dismissed. Id. A. Malicious Prosecution And Perjury Plaintiffs claims of malicious prosecution and perjured testimony perhaps most directly call into question the validity of his conviction and sentence. Indeed, several courts have applied the holding in Heck to dismiss claims under § 1983 seeking damages arising out of convictions allegedly obtained through police misconduct and perjury. See, e.g., Channer v. Mitchell, 43 F.3d 786, 787 (2d Cir.1994) (allegations that two police officers committed “numerous acts of perjury and coerced witnesses to wrongfully identify [plaintiff]” in state" }, { "docid": "22194728", "title": "", "text": "lawsuit is not a direct challenge to the state court convictions. The Heck Doctrine In Heck, the petitioner was convicted of voluntary manslaughter for killing his wife and was sentenced to a fifteen-year prison term. 512 U.S. at 478, 114 S.Ct. 2364. While his criminal appeal was pending, the petitioner filed suit under 42 U.S.C. § 1983 against two prosecutors and an Indiana State Police investigator, alleging that they “had engaged in an ‘unlawful, unreasonable, and arbitrary investigation’ leading to petitioner’s arrest; ‘knowingly destroyed’ evidence ‘which was exculpatory in nature and could have proved [petitioner’s] innocence’; and caused ‘an illegal and unlawful voice identification procedure’ to be used at petitioner’s trial.” Id. at 478-9, 114 S.Ct. 2364. The Court held that in order for an individual to recover damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid,” the conviction or sentence must be called into question in some way — either through direct appeal, expungement, invalidation by a state tribunal, or by a federal court’s issuance of a writ of habeas corpus. Id. at 486-87, 114 S.Ct. 2364. The Court further explained: [W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. Id. at 487, 114 S.Ct. 2364. Thus, if finding in favor of a § 1983 plaintiff “would necessarily imply the invalidity of his conviction or sentence ... the complaint must be dismissed.” Id. As support for reversal, the Szajers point to footnote seven of the Heck opinion where the Court stated: “For example, a suit for damages attributable to an allegedly unreasonable search" }, { "docid": "11741560", "title": "", "text": "to the United States Mail “A state prisoner cannot seek damages pursuant to 42 U.S.C. § 1983 for an unconstitutional conviction or imprisonment without first demonstrating the invalidity of the conviction.” Gibson v. City of New York, No. 96 CV 4958, 1998 WL 960303 (E.D.N.Y. Dec. 9, 1998). As the Supreme Court has stated: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Thus, a district court considering a state prisoner’s Section 1983 claim must decide whether a judgment in favor of the plaintiff in a civil suit would imply the invalidity of the plaintiffs underlying criminal conviction; if it would, the complaint must be dismissed unless the conviction has already been invalidated by a state court. Id. Here, Tucker was convicted, upon his guilty pleas, of three misdemeanor charges in full satisfaction of the indictment: Criminal Mischief in the Fourth Degree, and two counts of Criminal Contempt in the Second Degree. One of those charges, the criminal mischief count, related to conduct occurring on the date of his arrest, December 25, 1995. His conviction was affirmed on appeal to the New York State Appellate Division, Second Department. Accordingly, his claim for damages relating to convictions and sentences that have been upheld on appeal is not cognizable under Section 1983. Heck v. Humphrey, 512 U.S. at 487, 114 S.Ct. 2364. For this reason, the defendants’ motion for summary judgment dismissing the complaint as to the Section 1983 malicious prosecution claim is granted, and" }, { "docid": "22053824", "title": "", "text": "laws of the United States, including the Fourth and Fourteenth Amendments, by (a) Detaining plaintiff without reasonable suspicion; (b) Subjecting plaintiff to excessive force and threats of great bodily injury and death; (c) Arresting plaintiff without probable cause and in an unreasonable manner; (d) Failing to prevent the misconduct by other officers; (e) Falsely imprisoning plaintiff; and (f) Interfering with plaintiffs right to seek redress for his injuries by covering up for officer misconduct. Although Cabrera’s cause of action is somewhat amorphous, we construe this claim for relief as alleging claims for false arrest, false imprisonment, excessive force, and official cover-up of Fourth Amendment violations which resulted in obstruction of justice. As such, Cabrera seeks damages resulting from these alleged actions. In 1994, the Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal.... Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (footnote omitted). Therefore, if a judgment for Cabrera on the § 1983 claim “would necessarily imply the invalidity of his conviction,” id. at 487, 114 S.Ct. 2364, Heck would bar Cabrera from bringing his cause of action until his conviction was overturned. To prevail on his § 1988 claim for false arrest and imprisonment, Cabrera would have to demonstrate that there was no probable cause to arrest him. See George v. City of Long Beach, 973 F.2d 706, 710 (9th Cir.1992). The police claim hearing Cabrera’s challenge to fight provided probable cause to arrest him for disturbing the peace. On these facts, finding there was no probable" }, { "docid": "23371196", "title": "", "text": "investigation leading to his arrest, destroying exculpatory evidence, and using an illegal voice-identification procedure at his trial. 512 U.S. at 478-79, 114 S.Ct. 2364. The Supreme Court analogized Heck’s § 1983 claim to a tort claim for malicious prosecution. Id. at 484, 114 S.Ct. 2364. An element of a malicious-prosecution claim is a showing that the plaintiff prevailed in the criminal proceeding that gave rise to the malicious-prosecution lawsuit. The Court noted that this “favorable-termination requirement” protects against the risk of inconsistent judgments that collateral attacks on criminal convictions could otherwise engender. Id. at 484-85, 114 S.Ct. 2364. Accordingly, the Supreme Court held that a § 1983 damages action in connection with an unlawful conviction or sentence will not lie unless the claimant, like a malicious-prosecution plaintiff, can show that the underlying conviction or sentence has been invalidated: [T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. Id. at 486-87, 114 S.Ct. 2364. Moreover, the Supreme Court instructed that even if the plaintiff challenges something other than his conviction or sentence, where a ruling in his favor would “necessarily imply the invalidity of his conviction or sentence,” the favorable-termination requirement applies: [W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Id. at 487, 114 S.Ct. 2364. Justice Souter, joined by three of his colleagues, wrote a separate concurrence in Heck, in which he expressed the view that the favorable-termination requirement does not preclude § 1983 lawsuits by persons who could" } ]

[ { "docid": "15461897", "title": "", "text": "OPINION PER CURIAM: Marshall Andre Kelly, a California state prisoner, petitioned the United States District Court for a writ of habe-as corpus. He urged as grounds for relief prosecutorial misconduct during his state court trial. The district court denied him relief, and he has appealed. Kelly is black, and the charge was forcible rape. In these circumstances, the district attorney’s exhortation in a closing argument to the jury to “[tjhink about the consequences of letting a guilty man, a man guilty of a serious and rather horrible crime, go free. Because maybe the next time it won’t be a little black girl from the other side of the tracks; maybe it will be somebody that you know; maybe it will be somebody that I know. And maybe the next time he’ll use the knife. . . .” constituted a highly inflammatory and wholly impermissible appeal to racial prejudice. (R. 29-30) Guilty verdicts must, of course, be based upon solid evidence, not upon appeals to emotion. See United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2nd Cir. 1973). Moreover, the district attorney violated the Griffin rule. (Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).) The charge being rape brought the accused and his role in the alleged affair into particularly sharp focus. And although the district attorney did not directly comment that Kelly had not taken the witness chair to deny or give his version of the affair, her repeated assertions to the effect that the alleged victim’s testimony of non-consent stood unchallenged “naturally and necessarily” (Hayes v. United States, 368 F.2d 814, 816 (9th Cir. 1966)) emphasized Kelly’s testimonial silence. Finally, the district attorney’s peroration that “If you can’t find the defendant guilty on the facts that I have presented to you, I feel like I just might as well, you know, close up shop and go home . . . .” was not only a highly improper expression of personal opinion but constituted a veiled threat to the jury to return a guilty verdict. The trial judge’s prompt direction to disregard at" } ]

[ { "docid": "3876917", "title": "", "text": "or interpretation of state law on a petition for habeas unless such application or interpretation violates federal law. As the Supreme Court recently declared: We have stated many times that ‘federal habeas corpus relief does not lie for errors of state law.’ ... Today, we reemphasize that it is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, — U.S. -, -, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) (citations omitted); see also Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir.1993) (same); Springer v. Coleman, 998 F.2d 320, 324 (5th Cir.1993) (“As a Federal Court we may find that the state court’s application of state ... law violates due process, but we may not interfere with the state court’s application of state law.”); Smith v. McCotter, 786 F.2d 697, 700 (5th Cir.1986) (“We do not sit as a ‘super’ state supreme court.”). Based on the foregoing, the Colorado Court of Appeals’ decimation to apply its state’s inconsistent-verdict law does not run afoul of federal law. B. Bowser also alleges that the prosecutor violated his due process rights by expressing his personal opinions during closing argument. However, federal courts hold no supervisory powers over state judicial proceedings. Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). As the district court correctly stated, “[t]o raise a federal constitutional question, a prosecutor’s statements must be ‘so egregious as to render the entire trial fundamentally unfair.’ Soap v. Carter, 632 F.2d 872[, 876] (10th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981)” (quotation and citation omitted). Order Denying Pet. for Writ of Habeas Corpus at 3. Although arguably improper, the prosecutor’s repeated use of “believe” and “think” in his closing argument did not “demonstrate [any] improper reliance upon outside evidence, [any] misstatement or misrepresentation of the facts, [or any] prejudice to” Bowser. Id. at 4 (citing" }, { "docid": "10298953", "title": "", "text": "misconduct. First, he claims that during the guilt/innocence phase of his trial the prosecutor committed errors in closing argument that deprived DeShields of his constitutional rights. Second, DeShields claims that in the penalty phase of the trial the prosecutor made arguments which were constitutionally improper. DeShields fails to allege what comments he considers were improper and therefore the Court has necessarily relied on the state court record and the Respondent’s Answer in construing these claims. 1. Legal Standards “The relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. De Christoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)). “[T]he appropriate standard of review for such a claim on writ of habeas corpus is ‘the narrow one of due process, and not the broad exercise of supervisory pow er.’ ” Darden, 477 U.S. at 181, 106 S.Ct. at 2471 (quoting Donnelly, 416 U.S. at 642, 94 S.Ct. at 1871). In Darden, in determining whether the allegedly impermissible statements so infected the trial as to render it unfair, the Court determined that the weight of the evidence against the defendant “reduced the likelihood that the jury’s decision was not influenced by argument.” Id. at 182, 106 S.Ct. at 2472. The Court also noted that the trial court instructed the jury that “their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence.” Id. at 182, 106 S.Ct. at 2472. As the Third Circuit recently noted in Ramseiir v. Beyer, 983 F.2d 1215, 1239 (3d Cir.1992), “[wjhile the line is sometimes a fine one, ‘[i]t is essential to distinguish between ordinary trial error and that sort of egregious misconduct which amounts to a denial of constitutional due process.’ ” (quoting United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir.1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365" }, { "docid": "231020", "title": "", "text": "925 F.2d 1527, 1546 (3d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991). While the line is sometimes a fine one, “[i]t is essential to distinguish between ordinary trial error and that sort of egregious misconduct which amounts to a denial of constitutional due process.” United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir.1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). In evaluating whether the prosecutor’s misconduct rose to the level of constitutional violation, we must examine that conduct in the context of the trial as a whole. See Greer, 483 U.S. at 766, 107 S.Ct. at 3109 (determining whether “remarks, in the context of the entire trial, were sufficiently prejudicial to violate respondent’s due process rights”) (quoting Donnelly, 416 U.S. at 639, 94 S.Ct. at 1869); see also United States v. Adams, 759 F.2d 1099, 1111 (3d Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 336, 88 L.Ed.2d 321 (1985) (examining the “context of the entire trial”). We conclude, as did the New Jersey Supreme Court, that although there were instances in which the prosecution’s conduct might be deemed inappropriate, any error which resulted was harmless in light of the entire fourteen day trial. See Ramseur, 106 N.J. at 319-24, 524 A.2d at 288-90. Moreover, whenever the improper conduct was objected to by the defense, the trial court sustained the valid objections and gave the jury proper limiting instructions. Cf. Adams, 759 F.2d at 1111 (“prosecutor’s remarks, if improper at all, were either trivial or could have been blunted by a curative instruction that appellants did not request”). Therefore, we will affirm the district court’s determination that the prosecutor’s conduct was not so egregious as to amount to a denial of Ramseur’s constitutional rights. VI. For the foregoing reasons, we will affirm the district court’s denial of Thomas Rams-eur’s petition for a writ of habeas corpus. . Before the district court, the petition for habe-as corpus was based in part on the assumption that two jurors had been excluded from the grand jury panel on" }, { "docid": "6766120", "title": "", "text": "were violated when he was tried by a jury selected from residents of a county other than the one in which the alleged crimes were committed and that he was denied his right to trial by a jury comprising a representative cross-section of the locale where the crimes took place. This court concluded that the defendant had failed to exhaust his state remedies by merely transmitting a letter to the New Jersey Supreme Court highlighting a California case which discussed the cross-section issue and by making further reference to the decision at oral argument. Although Zicarelli’s state court briefs addressed the venue issue, they ignored the cross-section claim. Thus, Judge Adams, writing for the court, concluded that “[s]ueh an arrangement hardly seems to conform to the Supreme Court criteria of ‘fairly presenting’ an issue. Nor does it appear to satisfy the comity rationale that undergirds the exhaustion rule.” 543 F.2d at 474-75. Because the substance of the appellant’s state claim is virtually indistinguishable from the due process allegation now before the federal court, and because the method of analysis is indistinct, the Picard test for exhaustion of state remedies has been met. This conclusion is especially appropriate because of the necessarily vague nature of a due process allegation. Failure to invoke the Due Process Clause more specifically should not therefore stand in the appellant’s path to habeas relief, especially since the state courts understood and considered the “substantial equivalent” of the appellant’s claims before this court and the court below. III. It is a well-established principle that evidentiary errors of state courts are not considered to be of constitutional proportion, cognizable in federal habeas corpus proceedings, unless the error deprives a defendant of fundamental fairness in his criminal trial. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir. 1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). We next consider whether use of the co-conspirator’s guilty plea rises to the level of constitutional proportions. If so, the" }, { "docid": "7411825", "title": "", "text": "for you to say stop. Send out a message about the conduct engaged in by that man as he sits passively at that table, cannot be condoned among civilized men. Tell him what you did, when you did it, how you did and for the reason that you did it you must die.” (N.T. 9/24/82,160). It is improper for a prosecutor to suggest to a jury that it has a “duty to even the score,” to direct his comments to passion and prejudice rather than to an understanding of the facts and of the law or to appeal to the jury to act as the conscience of the community. United States v. Beasley, 2 F.3d 1551, 1560 (11th Cir.1993), cert. denied, 512 U.S. 1240, 114 S.Ct. 2751, 129 L.Ed.2d 869 (1994); Lesko v. Lehman, 925 F.2d at 1545, citing, inter alia, Rogers v. Lynaugh, 848 F.2d 606, 611 (5th Cir.1988) and United States ex rel. Perry v. Mulligan, supra. See Also: United States v. Gross, 961 F.2d 1097 (3d Cir.1992). In reviewing the complained-of statements in the light of the record as a whole, we agree with the Pennsylvania Supreme Court’s finding that there was no impropriety here. Read in its entirety, the message which the prosecutor asked the jury to deliver by their verdict was not to society as a whole, but to the defendant as an individual. We thus find no grounds meriting habeas relief on this point. (c) That the prosecutor engaged in misconduct when he commented on the role of mercy in the jury’s sentencing decision and denigrated petitioner’s mitigating evidence. While he must be careful not to infect a trial with unfairness, a prosecutor may properly counsel the jury to avoid emotional responses not rooted in the trial evidence and can argue in favor of the purposes of the death penalty, including the objectives of retribution and deterrence. See: Darden v. Wainwright, 477 U.S. at 181, 106 S.Ct. at 2471; Lesko v. Lehman, 925 F.2d at 1545. He may not direct his comments, however, to passion and prejudice rather than to an understanding of the" }, { "docid": "22206250", "title": "", "text": "habeas relief may be granted when the “prosecutorial misconduct may ‘so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The Court further opined that for due process to have been offended, “the prosecutorial misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ ” Id. (citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (quoting United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976))). See also Ramseur v. Beyer, 983 F.2d 1215, 1239 (3d Cir.1992) (our review of a prosecutor’s conduct in a state trial in a federal habeas proceeding is limited to determining whether the prosecutor’s conduct “ ‘so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process.’ ” (quoting Greer, 483 U.S. at 765, 107 S.Ct. 3102)). This determination will, at times, require us to draw a fine line — distinguishing between ordinary trial error on one hand, and “ ‘that sort of egregious misconduct which amounts to a denial of constitutional due process’” on the other hand. Ramseur, 983 F.2d at 1239 (quoting United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir.1976)). In evaluating whether the remarks of the prosecutor rise to the level of a constitutional violation, we are required to examine those remarks in the context of the whole trial. Ramseur, 983 F.2d at 1239 (citing Greer, 483 U.S. at 766, 107 S.Ct. 3102). The remarks must be sufficiently prejudicial in the context of the entire trial to violate a petitioner’s due process rights. Greer, 483 U.S. at 766, 107 S.Ct. 3102 (citing Donnelly v. DeChristoforo, 416 U.S. at 639, 94 S.Ct. 1868). We cannot say that the prosecutor’s “marked man” comments during closing argument were sufficiently prejudicial in the context of the entire" }, { "docid": "7411826", "title": "", "text": "in the light of the record as a whole, we agree with the Pennsylvania Supreme Court’s finding that there was no impropriety here. Read in its entirety, the message which the prosecutor asked the jury to deliver by their verdict was not to society as a whole, but to the defendant as an individual. We thus find no grounds meriting habeas relief on this point. (c) That the prosecutor engaged in misconduct when he commented on the role of mercy in the jury’s sentencing decision and denigrated petitioner’s mitigating evidence. While he must be careful not to infect a trial with unfairness, a prosecutor may properly counsel the jury to avoid emotional responses not rooted in the trial evidence and can argue in favor of the purposes of the death penalty, including the objectives of retribution and deterrence. See: Darden v. Wainwright, 477 U.S. at 181, 106 S.Ct. at 2471; Lesko v. Lehman, 925 F.2d at 1545. He may not direct his comments, however, to passion and prejudice rather than to an understanding of the facts and of the law nor may he misstate the law. Id., citing United States ex rel. Perry v. Mulligan, 544 F.2d 674, 680 (3d Cir.1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). To state that mercy towards a defendant in a capital case contravenes the law or is frowned upon by the Supreme Court strikes at the core of the jury’s role in capital sentencing. Drake v. Kemp, 762 F.2d 1449, 1460 (11th Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 738 (1986). Thus, the suggestion that mercy is inappropriate is not only a misrepresentation of the law but withdraws from the jury one of the most central sentencing considerations, the one most likely to tilt the decision in favor of life. Id. See Also: Lesko, 925 F.2d at 1545. Stated otherwise, while the prosecutor may argue that mercy is not warranted by the facts of a certain case and the history of a particular defendant, when the prosecutor argues that it is mercy itself that" }, { "docid": "19364999", "title": "", "text": "examine the relative probative and prejudicial value of evidence to determine whether its admission violated defendant’s right to a fair trial. In this case, the district court explained that it was reviewing for constitutional error, not errors in state law, and thus examined the testimony’s probative worth to assess the constitutional implications of the state court’s ruling. See 689 F.Supp. at 513. We point out, however, that just as “[n]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice,’ ” United States ex rel. Perry v. Mulligan, 544 F.2d 674 (3d Cir.1976) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977), not every error in bal ancing probative value against prejudicial effect “amount[s] to error which rises to constitutional dimensions.” See United States ex rel. Mertz v. New Jersey, 423 F.2d at 539-40. In Bisaccia v. Attorney Gen. of New Jersey, 623 F.2d 307 (3d Cir.), cert. denied 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980), we identified at what point such an error in balancing might be cognizable in a habeas proceeding: When it must be said that the probative value of such evidence, though relevant, is greatly outweighed by the prejudice to the accused from its admission, then use of such evidence by a state may rise to the posture of fundamental fairness and due process of law. 623 F.2d at 313 (quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th Cir.1974)). Accord Osbourne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir.1983) (per curiam) (error in balancing must be of “such magnitude” as to deny fundamental fairness); United States ex rel. Palmer v. DeRobertis, 738 F.2d 168, 171 (7th Cir.) (when probative value of evidence is “greatly outweighed” by the prejudice to the accused, then use of such evidence may “rise to the posture of the denial of fundamental due process”); Thompson v." }, { "docid": "7411803", "title": "", "text": "not every error in balancing probative value against prejudicial effect amounts to error which rises to constitutional dimensions.” Lesko v. Owens, 881 F.2d 44, 51 (3d Cir.1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990) quoting United States ex rel. Perry v. Mulligan, 544 F.2d 674 (3d Cir.1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977) and Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431(1974). To constitute the requisite denial of fundamental fairness sufficient to issue a writ of habeas corpus, the erroneously admitted evidence must be “material in the sense of a crucial, critical, highly significant factor,” and the probative value of the evidence must be so conspicuously outweighed by its inflammatory content that a defendant’s constitutional right to a fair trial has been violated. Lesko v. Owens, 881 F.2d at 52; Robinson v. Vaughn, 1995 WL 572177 at *3 (E.D.Pa.1995), quoting Jameson v. Wainwright, 719 F.2d 1125, 1127 (11th Cir.1983), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990). In conducting this inquiry, the federal court must accord great deference to the state trial court given that it is in a unique position to assess the relative probative value and inflammatory effect of proffered testimony. Id., citing United States v. Guerrero, 803 F.2d 783, 785 (3d Cir.1986). It should be noted that evidence may be unfairly prejudicial if it appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise may cause a jury to base its decision on something other than the established propositions in the case. Lesko v. Owens, 881 F.2d at 55. In this case, Detective Robert Kane testified without objection that he determined that Otis Peterkin was also known as Otis Loach, Jr. because a check of the voter registration records revealed that there was an Otis Loach, Jr. and an Otis Peter-kin registered to vote at 1536 Clearview Street in Philadelphia. (N.T. 9/21/82, 157-158; 9/22/82, 35-36). Additionally, immediately after the Custodian of Records from the Department of Public Assistance testified" }, { "docid": "4460407", "title": "", "text": "do you' understand . that your testimony is, of course, under oath. . . . ”? None of the government witnesses was given such a warning. I understand it, and the jurors undoubtedly understood it, as a particular admonition that the defendant should resist the temptation to commit perjury. While the majority cannot quite bring itself to endorse the trial court’s practice of warning testifying defendants, in the presence of the jury, about the privilege against self-incrimination and the dangers of false swearing, it cannot, either, bring itself to order a new trial. Tongue clicking over bad practices has become a familiar routine in this court. E. g., United States v. LeFevre, 483 F.2d 477, 478 80 (3d Cir. 1973); United States v. Benson, 487 F.2d 978, 981 82 (3d Cir. 1973); United States v. Somers, 496 F.2d 723, 736-42 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678-80 (3d Cir. 1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977); United States v. DeRosa, 548 F.2d 464, 469-72 (3d Cir. 1977); United States v. Gallagher, 576 F.2d 1028, 1041-43 (3d Cir. 1978). Our tongue clicking over improper argument by government counsel has been notoriously ineffective in preventing it, as the persistent need to resort to gentle chastisement amply demonstrates. Bland expressions of disapproval of improprieties and tepid endorsements of “the better practice” are no substitute for the exercise of appellate judicial responsibility. I would grant a new trial. . Compare United States v. Semensohn, 421 F.2d 1206, 1209 (2d Cir. 1970); United States v. Brinson, 411 F.2d 1057, 1060 (6th Cir. 1969); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969); and Johnson v. Patterson, 475 F.2d 1066 (10th Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 64, 38 L.Ed.2d 124 (1973), with United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3d Cir.), cert. denied, 414 U.S. 938, 94 S.Ct. 243, 38 L.Ed.2d 165 (1973); and United States v. Ra mirez, 441 F.2d 950, 954 (5th" }, { "docid": "9989974", "title": "", "text": "the jurors draw an unfavorable inference from Wallace’s failure to call as character witnesses fellow attorneys from his community. 281 F.2d at 667-68. . Even defense counsel partially mitigated any harmful effects of the prosecutor’s remarks by stating in his own closing argument that the prosecutor’s statements were only a characterization, and that Bittick’s actual words were not “Television Marketing stinks.” (Tr. at 3687) . See also United States v. Harris, 542 F.2d 1283, 1316 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1557, 51 L.Ed.2d 779 (1977), wherein it was held that “rarely are trials perfect, and improprieties in argument by counsel do not call for a new trial unless they are of a nature as probably to prejudice the defendant and the prejudice is not neutralized by the trial judge before submission of the case to the jury.” (citation omitted). . As a final note, I would add that the record indicates that no objection to the remarks was made either during or after the prosecutor’s closing argument. Consequently, I would question the propriety of raising this issue on appeal when the trial court was never given an opportunity to respond immediately to the alleged problem and to provide a limiting instruction, if indeed one was necessary. In ruling on a similar issue, the Third Circuit in United States ex rel. Perry v. Mulligan, 544 F.2d 674, 680 (1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977), commented that, We note also that defense counsel made no objection to these remarks nor did he request any corrective instruction from the trial court. In Estelle v. Williams, 425 U.S. 501 [96 S.Ct. 1691, 48 L.Ed.2d 126] . . . (1976), the Supreme Court again emphasized the necessity of entering an objection upon the rec ord so that the trial judge would have an opportunity to remedy the error. The absence of protest may also be a gauge of the courtroom atmosphere. It may be assumed that the prosecutor’s oratory, although extended, fell short of being electrifying and defense counsel saw no need to" }, { "docid": "19364998", "title": "", "text": "apply the due process balance to determine if that relevance was outweighed by the prejudicial impact of the statement.” We do not believe that the district court exceeded the scope of its authority in a habeas corpus proceeding. Clearly, at the heart of petitioner’s complaint is a challenge to a state court evidentiary ruling. Yet this court, along with other federal courts of appeals, has recognized that the erroneous admission of evidence that is relevant, but excessively inflammatory, might rise to the level of a constitutional violation. See, e.g., United States ex rel. Mertz v. New Jersey, 423 F.2d 537, 539-40 (3d Cir.1970); Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir.1988), cert. denied — U.S. -, 109 S.Ct. 1655, 104 L.Ed.2d 169 (1989); Walker v. Engle, 703 F.2d 959, 968 (6th Cir.), cert. denied sub nom. Marshall v. Walker, 464 U.S. 951, 104 S.Ct. 367, 78 L.Ed.2d 327 (1983); Osbourne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir.1983) (per curiam); Panzavecchia v. Wainwright, 658 F.2d 337, 341-42 (5th Cir.1981). Accordingly, a reviewing court must examine the relative probative and prejudicial value of evidence to determine whether its admission violated defendant’s right to a fair trial. In this case, the district court explained that it was reviewing for constitutional error, not errors in state law, and thus examined the testimony’s probative worth to assess the constitutional implications of the state court’s ruling. See 689 F.Supp. at 513. We point out, however, that just as “[n]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice,’ ” United States ex rel. Perry v. Mulligan, 544 F.2d 674 (3d Cir.1976) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977), not every error in bal ancing probative value against prejudicial effect “amount[s] to error which rises to constitutional dimensions.” See United States ex rel. Mertz v. New Jersey, 423 F.2d at 539-40. In Bisaccia v." }, { "docid": "231019", "title": "", "text": "Ramseur’s guilt; (3) the prosecutor’s ridicule of defense experts that allegedly resulted in their impeachment; (4) the prosecutor’s misstatements about and improper use of evidence; and (5) the prosecutor’s mischaracterization of the defense. At the outset we make the observation that “not every trial error or infirmity which might call for application of supervisory powers ' correspondingly constitutes a ‘failure to observe that fundamental fairness essential to the administration of justice.’ ” Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974) (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941)). Instead, our review of a prosecutor’s conduct in a state trial on application for a writ of habeas corpus is limited to determining whether the prosecution’s conduct “so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process.” Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3108, 97 L.Ed.2d 618 (1987) (quoting Donnelly, 416 U.S. at 643, 94 S.Ct. at 1871); Lesko v. Lehman, 925 F.2d 1527, 1546 (3d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991). While the line is sometimes a fine one, “[i]t is essential to distinguish between ordinary trial error and that sort of egregious misconduct which amounts to a denial of constitutional due process.” United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir.1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). In evaluating whether the prosecutor’s misconduct rose to the level of constitutional violation, we must examine that conduct in the context of the trial as a whole. See Greer, 483 U.S. at 766, 107 S.Ct. at 3109 (determining whether “remarks, in the context of the entire trial, were sufficiently prejudicial to violate respondent’s due process rights”) (quoting Donnelly, 416 U.S. at 639, 94 S.Ct. at 1869); see also United States v. Adams, 759 F.2d 1099, 1111 (3d Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 336, 88 L.Ed.2d 321 (1985) (examining the “context of the entire trial”). We conclude, as" }, { "docid": "14332209", "title": "", "text": "should be given a “fair shake” did not infect the trial with unfairness so as to make the resulting conviction a denial of due process. In his summation defense counsel dismissed Willie Lee Jones’ testimony as that of a “convicted narcotics dealer he stood trial before a judge and jury and they didn’t believe a word he said and found him guilty . . . . Nobody believed this man and I say, ladies and gentlemen, no not even the men in the prosecutor’s office believed this man.” It is understandable that the prosecutor tried to minimize this attack by seeking to enlist the jury’s sense of justice in believing that Jones had been punished beyond that which the law requires. In this day and age, however, we are unable to accept the contention that the jury was so influenced by any feeling of compassion for the convicted narcotics dealer as to have based its verdict upon that factor rather than on the evidence. The essence of an improper appeal to the jurors is that it is directed to passion or prejudice rather than to an understanding of the facts and of the law. Thus, repeated racial slurs, United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2d Cir. 1973); raising the spectre of martial law in a time of racial violence, Brown v. United States, 125 U.S.App.D.C. 220, 370 F.2d 242 (1966); and an appeal to patriotism in time of war, Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943), have been held to be remarks too likely to influence the jury in its deliberations. However, in Tenorio v. United States, 390 F.2d 96, 99 (9th Cir.), cert. denied, 393 U.S. 874, 89 S.Ct. 169, 21 L.Ed.2d 145 (1968), the court noted: “Counsel are entitled to a reasonable degree of latitude in the presentation of argument, and the prosecutor’s comment concerning ‘the destruction and the human waste which arises from the use of heroin’ contained nothing more than that which is within the common knowledge of all reasonable people.” In our opinion, the" }, { "docid": "7411802", "title": "", "text": "whether the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair. Floyd v. Meachum, 907 F.2d 347, 353 (2nd Cir.1990). See Also: Kontakis v. Beyer, 19 F.3d 110, 120 (3d Cir.1994); Keller v. Larkins, 89 F.Supp.2d 593, 604 (E.D.Pa.2000), aff'd 251 F.3d 408 (3d Cir.2001). Similarly, in some circumstances, the admission of evidence in a state criminal proceeding can rise to the level of a constitutional error. In such cases, the petitioner must show that the “use of the evidence” caused “fundamental unfairness” in violation of due process. Kontakis, supra., citing Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). See Also: Bisaccia v. Attorney General, 623 F.2d 307, 312 (3d Cir.1980), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980); Keller v. Larkins, 89 F.Supp.2d at 604. However, just as “not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a failure to observe that fundamental fairness essential to the very concept of justice, not every error in balancing probative value against prejudicial effect amounts to error which rises to constitutional dimensions.” Lesko v. Owens, 881 F.2d 44, 51 (3d Cir.1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990) quoting United States ex rel. Perry v. Mulligan, 544 F.2d 674 (3d Cir.1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977) and Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431(1974). To constitute the requisite denial of fundamental fairness sufficient to issue a writ of habeas corpus, the erroneously admitted evidence must be “material in the sense of a crucial, critical, highly significant factor,” and the probative value of the evidence must be so conspicuously outweighed by its inflammatory content that a defendant’s constitutional right to a fair trial has been violated. Lesko v. Owens, 881 F.2d at 52; Robinson v. Vaughn, 1995 WL 572177 at *3 (E.D.Pa.1995), quoting Jameson v. Wainwright, 719 F.2d 1125, 1127 (11th Cir.1983), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107" }, { "docid": "22761181", "title": "", "text": "F.2d at 663; Hall v. United States, 419 F.2d 582, 583-84 (5th Cir. 1969); see Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1934). Generally, a prosecutor is prohibited from seeking to obtain a conviction by going beyond the evidence before the jury. United States v. Dorr, supra, 636 F.2d at 120; United States v. Garza, 608 F.2d at 663; United States v. Morris, supra, 568 F.2d at 401 “[A]n attorney may not inject into his argument any extrinsic or prejudicial matter that has no basis in the evidence.” United States v. Morris, supra, 568 F.2d at 401. A prosecutor is also forbidden to make improper suggestions, insinuations and assertions calculated to mislead the jury. Berger v. United States, supra, 295 U.S. at 85, 55 S.Ct. at 632; United States v. Corona, supra, 551 F.2d at 1390. A prosecutor may not make an appeal to the jury that is “directed to passion or prejudice rather than to an understanding of the facts and of the law.” United States ex rel. Perry v. Mulligan, 544 F.2d 674, 680 (3d Cir. 1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). However, “[u]nless calculated to inflame, an appeal to the jury to act as the conscience of the community is not impermissible ....” United States v. Lewis, 547 F.2d 1030, 1037 (8th Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977); see also United States v. Hawkins, 595 F.2d 751, 754-55 (D.C.Cir.), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979). “In determining the overall degree of prejudice in a prosecutor’s closing argument, an appellate court may consider the district court’s jury instruction and the strength of the evidence against each defendant.” United States v. Dorr, supra, 636 F.2d at 121. The court below instructed the jury that the arguments of counsel were not evidence upon which a verdict could be based. We have considered the prosecutor’s misstatements in light of the quantum of evidence against each appellant, and conclude that none of the appellants’ substantial" }, { "docid": "7411824", "title": "", "text": "additional remarks about the number of bullets in each victim’s body and alleging that each of the victims would also have testified to the pain with which they died, the prosecutor overstepped his bounds. We once again find that, in the context of the entire closing statements and record evidence, these remarks also contributed to the denial of Petitioner’s rights to due process by unfairly prejudicing the jury and that the Pennsylvania Supreme Court’s finding that this constituted harmless error was an unreasonable application of the law to the facts of this case. See, Werts v. Vaughn, 228 F.3d at 197; Ramseur v. Beyer, 988 F.2d 1215, 1239 (3d Cir.1992), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993). (b) That the prosecutor engaged in misconduct when he asked the jurors to “send out” a message about Petitioner’s conduct. Mr. Peterkin next challenges the following remarks by the Assistant District Attorney at the conclusion of his closing argument in the sentencing portion of his trial: “... What we are asking for is for you to say stop. Send out a message about the conduct engaged in by that man as he sits passively at that table, cannot be condoned among civilized men. Tell him what you did, when you did it, how you did and for the reason that you did it you must die.” (N.T. 9/24/82,160). It is improper for a prosecutor to suggest to a jury that it has a “duty to even the score,” to direct his comments to passion and prejudice rather than to an understanding of the facts and of the law or to appeal to the jury to act as the conscience of the community. United States v. Beasley, 2 F.3d 1551, 1560 (11th Cir.1993), cert. denied, 512 U.S. 1240, 114 S.Ct. 2751, 129 L.Ed.2d 869 (1994); Lesko v. Lehman, 925 F.2d at 1545, citing, inter alia, Rogers v. Lynaugh, 848 F.2d 606, 611 (5th Cir.1988) and United States ex rel. Perry v. Mulligan, supra. See Also: United States v. Gross, 961 F.2d 1097 (3d Cir.1992). In reviewing the complained-of statements" }, { "docid": "16551730", "title": "", "text": "643, 94 S.Ct. at 1871), and also pointed out that “not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a 'failure to observe that fundamental fairness essential to the very concept of justice’ ” (416 U.S. at 642, 94 S.Ct. at 1871). More particularly, the Court specifically distinguished Miller v. Pate and Brady v. Maryland because the prosecutorial misbehavior in both of those cases involved manipulation of the evidence as well as abuses during argument or summation; and it concluded its discussion with the following ob servations (416 U.S. at 645, 647-648, 94 S.Ct. at 1872, 1873): Although the process of constitutional line drawing in this regard is necessarily imprecise, we simply do not believe that this incident made respondent’s trial so fundamentally unfair as to deny him due process. * * * * % * The result reached by the Court of Appeals in this case leaves virtually meaningless the distinction between ordinary trial error of a prosecutor and that sort of egregious misconduct held in Miller and Brady, supra, to amount to a denial of constitutional due process. Since Donnelly v. DeChristoforo was decided in 1974 there have been three decisions in the Courts of Appeals in which it was determined that a writ of habeas corpus should issue in favor of a state prisoner because of improper prosecutorial argument to the jury at trial. Miller v. North Carolina, 583 F.2d 701 (4th Cir. 1978); Houston v. Estelle, 569 F.2d 372 (5th Cir. 1978); Kelly v. Stone, 514 F.2d 18 (9th Cir. 1975). See also, U. S. ex rel. Haynes v. MeKendrick, 481 F.2d 152 (2d Cir. 1973). In each of those cases, however, except Houston, the prosecutor made a direct appeal to racial prejudice; and such decisions are clearly distinguishable on that basis. Houston, which also happens to be a Fifth Circuit decision, is the only Court of Appeals opinion granting habeas relief on the basis of prejudicial prosecutorial argument concerning matters other than race. The petitioner in that case had been charged in the Texas courts with the offense" }, { "docid": "6766121", "title": "", "text": "the method of analysis is indistinct, the Picard test for exhaustion of state remedies has been met. This conclusion is especially appropriate because of the necessarily vague nature of a due process allegation. Failure to invoke the Due Process Clause more specifically should not therefore stand in the appellant’s path to habeas relief, especially since the state courts understood and considered the “substantial equivalent” of the appellant’s claims before this court and the court below. III. It is a well-established principle that evidentiary errors of state courts are not considered to be of constitutional proportion, cognizable in federal habeas corpus proceedings, unless the error deprives a defendant of fundamental fairness in his criminal trial. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir. 1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). We next consider whether use of the co-conspirator’s guilty plea rises to the level of constitutional proportions. If so, the appellant will have satisfied the requirements of 28 U.S.C. § 2254(a). It is well settled in this circuit that use of a co-conspirator’s guilty plea as substantive proof of a defendant’s complicity in a conspiracy without cautionary instruction is not admissible as evidence. United States v. Toner, 173 F.2d 140, 142 (3d Cir. 1949). However, as the district court noted, the cases address this issue in evidentiary rather than constitutional terms. Indeed, the appellee urges that the error merely amounted to “evidentiary irrelevance.” We nonetheless disagree. The use of such evidence is sufficiently unfair so as to raise the spectre of unconstitutionality for purposes of habeas corpus relief. We ground this conclusion on the concept of fundamental fairness inherently required in every criminal trial. Judge Goodrich’s eloquent statement in United States v. Toner is our starting point: From the common sense point of view a plea of guilty by an alleged fellow conspirator is highly relevant upon the question of the guilt of another alleged conspirator. If A’s admission that he conspired with B is" }, { "docid": "10298954", "title": "", "text": "2471 (quoting Donnelly, 416 U.S. at 642, 94 S.Ct. at 1871). In Darden, in determining whether the allegedly impermissible statements so infected the trial as to render it unfair, the Court determined that the weight of the evidence against the defendant “reduced the likelihood that the jury’s decision was not influenced by argument.” Id. at 182, 106 S.Ct. at 2472. The Court also noted that the trial court instructed the jury that “their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence.” Id. at 182, 106 S.Ct. at 2472. As the Third Circuit recently noted in Ramseiir v. Beyer, 983 F.2d 1215, 1239 (3d Cir.1992), “[wjhile the line is sometimes a fine one, ‘[i]t is essential to distinguish between ordinary trial error and that sort of egregious misconduct which amounts to a denial of constitutional due process.’ ” (quoting United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir.1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977)). When a claim of prosecutorial misconduct is made and there is no contemporaneous objection then “we review only for plain error, as appellants failed to preserve their objections to the prosecutor’s rebuttal summation.” United States v. Pungitore, 910 F.2d 1084, 1125-26 (3d Cir.1990). Thus, the dispositive issue under the holdings of this Court is not whether the prosecutor’s remarks amounted to error, but whether they rose to the level of “plain error” when he responded to defense counsel. In this setting and on this record the prosecutor’s response — although error — was not “plain error” warranting the court to overlook the absence of any objection by the defense. United States v. Young, 470 U.S. 1, 14, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1984). In Young, the court went on to state that The plain-error doctrine of Federal Rule of Criminal Procedure 52(b) tempers the blow of a rigid application of the contemporaneous-objection requirement. The Rule authorizes the Courts of Appeals to correct only “particularly egregious errors,” those errors that “seriously affect the" } ]

[ { "docid": "22661189", "title": "", "text": "irregular cardiac rhythm and moved to administrative segregation. On February 7, respondent again experienced pain in his chest, left arm, and back and asked to see a doctor. The guards refused. He asked again the next day. The guards again refused. Finally, on February 9, he was allowed to see Dr. Heaton, who ordered the Quinidine continued for three more days. On February 11, he swore out his complaint. II The gravamen of respondent’s § 1983 complaint is that petitioners have subjected him to cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the States by the Fourteenth. See Robinson v. Califor nia, 370 U. S. 660 (1962). We therefore base our evaluation of respondent’s complaint on those Amendments and our decisions interpreting them. The history of the constitutional prohibition of “cruel and unusual punishments” has been recounted at length in prior opinions of the Court and need not be repeated here. See, e. g., Gregg v. Georgia, 428 U. S. 153, 169-173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ. (hereinafter joint opinion)); see also Granucci, Nor Cruel and Unusual Punishment Inflicted: The Original Meaning, 57 Calif. L. Rev. 839 (1969). It suffices to note that the primary concern of the drafters was to proscribe “torture [s] ” and other “bar-bar[ous]” methods of punishment. Id., at 842. Accordingly, this Court first applied the Eighth Amendment by comparing challenged methods of execution to concededly inhuman techniques of punishment. See Wilkerson v. Utah, 99 U. S. 130, 136 (1879) (“[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . .”); In re Kemmler, 136 U. S. 436, 447 (1890) (“Punishments are cruel when they involve torture or a lingering death . . .”). Our more recent cases, however, have held that the Amendment proscribes more than physically barbarous punishments. See, e. g., Gregg v. Georgia, supra, at 171 (joint opinion); Trop v. Dulles, 356 U. S. 86, 100-101 (1958); Weems v. United States, 217 U. S. 349," } ]

[ { "docid": "20561742", "title": "", "text": "the past the courts limited their review under the eighth amendment to isolated incidents involving physical brutality. The focus has been on a par ticular practice and not on a broad view of the system as the cause of the punishment. Recently the courts have expanded their examination of the charges of cruel and unusual punishment giving consideration to the effect of a “combination of circumstances” upon the contested act, practice or system. They have placed emphasis on the role of the eighth amendment as it applies to overall prison conditions which have been found detrimental to the mental and moral well being of inmates as well as being physically debilitating. As early as 1910 the Supreme Court in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, held that the eighth amendment “. . . is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.” Id 378, 30 S.Ct. 553. The Court declared further that it was the intent of the drafters of the amendment that it cover “. . . ex- ercises of cruelty by laws other than those which inflicted bodily pain or mutilation.” Id. 372, 30 S.Ct. 551. In Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) the Court concluded that the eighth amendment applies to the states. The emphasis on nonphysical concepts of cruel and unusual punishment gained impetus in the courts as it is applied in a correctional context in the case of Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968). Although this case considered the use of physical punishment on inmates, the Court condemned such punishment because of its lack of rehabilitative potential. “Corporal punishment generates hate toward the keepers who punish and toward the system which permits it . . . . It frustrates correctional and rehabilitative goals Whipping creates other penological problems and makes adjustment to society more difficult.” Id. at 580. The trend toward examining programs for rehabilitation in conjunction with physical abuses and inhumane treatment has been articulated in the" }, { "docid": "6143807", "title": "", "text": ". . .” and “[t]he cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment . . . .” Id. at 464, 67 S.Ct. at 376. In that case attention was focused on the method rather than the proportionality of punishment. In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), a four-member plurality of the Court concluded that denationalization for wartime desertion was cruel and unusual punishment. Although the desertion consisted merely of escaping from a stockade, being absent from base for less than twenty-four hours and voluntarily returning to the base, the Court did not view the case as one of disproportionate punishment. “Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime.” Id. at 99, 78 S.Ct. at 597. It seemed again to be the method of punishment which the Court found reprehensible. “It is a form of punishment more primitive than torture . . ..” Id. at 101, 78 S.Ct. at 598. Still, the Court looked to Weems for guidance in applying the Eighth Amendment, and actually used a Weems comparative test in noting that civilized countries almost unanimously agreed that denationalization should not be used as a punishment. Id. at 102-03, 78 S.Ct. 590. The Court also emphasized the flexibility of the prohibition: \"The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Id. at 101, 78 S.Ct. at 598. Thus, although Trop appears to be primarily a methods case, it stresses the flexibility of the Eighth Amendment and employs a comparative test, both of which suggest the continuing vitality of the proportionality strand of Eighth Amendment law. A California law which required ninety days’ imprisonment for being addicted to narcotics was held invalid in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). The Court said: “Tobe sure, imprisonment for ninety days is not, in the abstract, a punishment which is either" }, { "docid": "15412737", "title": "", "text": "Texas Department of Corrections has developed a constitutionally impermissible means for operating its system of solitary confinement. The facts which lead to a conclusion that cruel and unusual punishment exists in the Texas system of isolation are not in dispute. Prisoners in solitary confinement live in barren, lightless cells, “feed”, to use the term loosely, on two slices of bread and water each day, and are clothed only in a cloth gown and shielded by a blanket. The conditions of solitary confinement, whether described by the panel majority or described by Judge Tuttle in dissent, constitute cruel and unusual punishment under any of the many definitions of the practices prohibited by the Eighth Amendment. “What constitute a cruel and unusual punishment has not been exactly decided.” Weems v. United States, 1910, 217 U.S. 349, 368, 30 S.Ct. 544, 54 L.Ed. 793. This statement is as true today as it was in 1910. It is possible, however, to identify three general approaches to the definition of “cruel and unusual punishment”. See Jordan v. Fitzharris, N.D. Cal.1966, 257 F.Supp. 674, 679. (1) A punishment may be “cruel and unusual” if it is “of such character ... as to shock general conscience or to be intolerable to fundamental fairness”, Lee v. Tahash, 8 Cir. 1965, 352 F.2d 970, 972, in light “evolving standards of decency”. Trop v. Dulles, 1958, 356 U.S. 86, 100-101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630. See Weems v. United States, supra; State ex rel. Francis v. Resweber, 1947, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422; Rudolph v. Alabama, 1963, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (Goldberg, J., dissenting); Jackson v. Bishop, 8 Cir. 1968, 404 F.2d 571. (2) A punishment may be “cruel and unusual” if it is greatly disproportionate to the offense for which it is imposed. See Weems v. United States, supra; Robinson v. California, 1962, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (Douglas, J., concurring); Rudolph v. Alabama, supra (Goldberg, J., dissenting); Jackson v. Bishop, supra. (3) A punishment may be “cruel and unusual” when it goes beyond" }, { "docid": "6143765", "title": "", "text": "so excessive in relation to the crime as to violate the Eighth Amendment, is not so irrational as to violate the Fourteenth. Appellees also argue that the failure by the legislature when basing the crime to be charged on the aggregate weight of the drug to distinguish between possession of a pure and of a cut ounce of cocaine is so irrational as to make the statute constitutionally infirm. We find Judge Oakes’ opinion in United States ex rel. Daneff v. Henderson, 501 F.2d 1180 (2d Cir. 1974) persuasive on this point and therefore reject the argument. . In Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) the Court found that a penalty imposed in the then United States possession, the Philippines, for the crime of falsification of documents was cruel and unusual. The punishment provided, inter alia, for 15 years painful labor while chained at the hands and the wrists, lifetime supervision and civil interdiction. In Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) the Court held that imprisonment for the status of being a drug addict was cruel and unusual punishment. A plurality of the Supreme Court in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) found that after a deserter from the armed forces was courtmartialed and given a dishonorable discharge to further punish him by stripping him of his citizenship violated the Eighth Amendment. . E. g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). . As one commentator has noted: [T]he severity half of the proportionality equation for crimes and punishments is evolutionary and depends directly upon the manner in which the public views each crime and each punishment. In a governmental structure in which determinations of public opinion are properly the province of the legislative branch, it is fundamentally impermissible for the judicial branch to arrogate that function to itself . Wheeler, Toward a Theory of Limited Punishment: An Examination" }, { "docid": "23294989", "title": "", "text": "and unusual punishment proscribed under the Eighth Amendment to the United States Constitution, is supported by substantial evidence. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251, supra. In that case the Court held that a state prisoner’s civil rights com plaint lodged under 42 U.S.C. § 1983 that he had been subjected to cruel and unusual punishment for inadequate treatment of a back injury while engaged in work in the Texas penitentiary must be entertained, and that deliberate indifference by prison personnel to a prisoner’s serious injury or illness constitutes cruel and unusual punishment contravening the Eighth Amendment. The court there reviewed the history of the constitutional prohibition of cruel and unusual punishment. It noted that the primary concern of the constitutional drafters was to proscribe “tortures” and other “barbarous” methods of punishment. The court then related: Our more recent cases, however, have held that the Amendment proscribes more than physically barbarous punishments. See, e. g., Gregg v. Georgia, supra [428 U.S. 153] at 171, [96 S.Ct. 2909 at 2924] (plurality opinion); Trop v. Dulles, 356 U.S. 86, 100-101, [78 S.Ct. 590, 597, 598, 2 L.Ed.2d 630] (1958); Weems v. United States, 217 U.S. 349, 373 [30 S.Ct. 544, 551, 54 L.Ed. 793] (1910). The Amendment embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . . ,” Jackson v. Bishop, 404 F.2d 571, 579 (C.A. 8 1968), against which we must evaluate penal measures. Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, supra, [356 U.S.] at 101, [78 S.Ct. 590 at 598]; see also Gregg v. Georgia, supra, [428 U.S. 153] at 153, [96 S.Ct. 2909] (plurality opinion); Weems v. United States, supra, [217 U.S.] at 378, [30 S.Ct. 544, 553], or which “involve the unnecessary and wanton infliction of pain,” Gregg v. Georgia, supra, [428 U.S. 153] at 153, [96 S.Ct. 2909] (plurality opinion); see also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, [67" }, { "docid": "20786458", "title": "", "text": "human contact can only lead to his destruction. The prohibition on cruel and unusual punishment is not a static concept . . but may acquire meaning as public opinion becomes enlightened by a humane justice.” Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 553, 54 L.Ed. 793 (1910). The fact that juveniles are in theory not punished, but merely confined for rehabilitative purposes, does not preclude operation of the Eighth Amendment. The reality of confinement in Annex B is that it is punishment. It is punishment imposed on obdurate boys by defendant administrators of the Training School. The legislature could not constitutionally, and has not, directly authorized confinement of juveniles to the “bug-out” rooms of Annex B. Defendants cannot do, in their administrative discretion, that which the legislature could not constitutionally authorize. See Kautter v. Reid, 183 F.Supp. 352 (D.D. C.1960); Comment, 84 Harv.L.Rev. 456, 459 (1970). The Eighth Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). It is binding on the states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Affidavits submitted by plaintiffs’ experts on the damaging effects of such solitary confinement are set out below: Dr. Jerome Miller, Commissioner, Department of Youth Services for the Commonwealth of Massachusetts: “My experience in penology led me to conclude that isolation can never constitute rehabilitation. No doubt, when a person is out of control, terribly upset, and could conceivably be a danger to himself or to someone else, he may have to be separated from others for a short while in order to calm down. ... If isolation is continued beyond a short time, the person isolated may begin to experience sensory deprivation, withdrawal, or perhaps psychotic or autistic behaviour.” Dr. George Lynn Hardman, Staff Psychiatrist, Roxbury Court Clinic, Boston; consultant to the Massachusetts Department of Youth Services: “It is my professional opinion that confining a child in isolation for punishment serves no treatment" }, { "docid": "9350702", "title": "", "text": "In his concurring opinion in Furman v. Georgia, 408 U.S. 238, 279, 92 S.Ct. 2726, 2747, 33 L.Ed.2d 346 (1971), Justice Brennan stated that: The final principle inherent in the [Cruel and Unusual Punishment] Clause is that a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary: The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive. (Citations omitted.) Expert evidence adduced at the trial unanimously condemned the beatings. The uncontradicted authoritative evidence indicates that the practice does not serve as useful punishment or as treatment, and it actually breeds counter-hostility resulting in greater aggression by a child. For these reasons we find the beatings presently administered are unnecessary and therefore excessive. We think, under the test of Furman, that the district court did not err in deciding that the disciplinary beatings shown by this record constituted cruel and unusual punishment. The 8th Amendment prohibition against cruel and unusual punishment is binding on the states through the 14th Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947). The meaning of cruel and unusual punishment in law has varied through the course of history, and as the Court observed in Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958): The [8th Amendment] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. The district court’s decision meets tests that have been applied in decisions to determine whether the standards of decency in a maturing society have been met, i. e.: whether the punishment is disproportionate to the offense, Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910); and whether the severity or harshness of" }, { "docid": "6143834", "title": "", "text": "Constitution protects a convicted man is cruelty inherent in the method of punishment . . . .”); Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (denationalization for wartime desertion held to be cruel and unusual because it is “a form of punishment more primitive than torture . ..”). . Schwartz & Wishingrad, supra note 3, at 808-15. . Id. at 817-19; see, e. g., Letter to Edmund Pendleton, Aug. 26, 1776, quoted in The Portable Thomas Jefferson 355, 357 (M. Peterson ed. 1975). . Schwartz & Wishingrad, supra note 3, at 819-26; B. Bailyn, The Ideological Origins of the American Revolution 26-29 (1967). . Schwartz & Wishingrad, supra note 3, at 829-30. . Id. at 830. . The Kemmler court, In re Kemmler, 136 U.S. 436, 446-48, 10 S.Ct. 930, 933, 34 L.Ed. 519 (1890), assumed without deciding that the Eighth Amendment applied to the states through the Fourteenth. This issue was not actually decided until 1962 in Robinson v. California, 370 U.S. 660, 664, 666-67, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), where the Court held that the Fourteenth Amendment guarantee of Due Process included the Eighth Amendment protection against cruel and unusual punishment. . Justice McKenna referred to McDonald v. Commonwealth, 173 Mass. 322, 328, 53 N.E. 874, 875 (1899), aff’d, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901) (“[I]t is possible that imprisonment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.”), quoted in Weems v. United States, 217 U.S. 349, 368, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910). But McDonald held that 25 years for forging checks where defendant had two previous convictions for three years or more was not excessive. Justice McKenna also discussed State v. Driver, 78 N.C. 423, 427 (1877) (five years’ imprisonment in county jail followed by security of $500 to keep the peace for five years for assault and battery upon wife held cruel and unusual), discussed in Weems v. United States, supra, 217 U.S." }, { "docid": "22248779", "title": "", "text": "were “cruel and unusual.” Its purpose was to bar the imposition of savage and barbaric punishments on convicted felons and to ensure that punitive actions taken by the state were consistent with the standards of a civilized society. Thus, at the time of its adoption, the Eighth Amendment barred such punishments as embowelling alive, beheading, and quartering; public dissection; and burning alive. See Wilkerson, 99 U.S. at 135. Since the Eighth Amendment was ratified, its reach has been expanded in two ways. First, the Supreme Court has recognized that the protections of the Eighth Amendment are “not static” and that “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion). The Court recognized as early as 1910 that the Cruel and Unusual Punishments Clause’s prohibitions are not limited to those methods of punishment that were considered cruel or unusual at the time the Bill of Rights was adopted. See Weems v. United States, 217 U.S. 349, 372-73, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910). The Framers understood that our society’s mores would evolve, and that some methods which had once been widely employed would become unacceptable to society, just as the torturous and barbaric punishments of the Stuarts had become unacceptable by the Framers’ own time. See id. at 372, 30 S.Ct. at 551. They therefore framed a prohibition on cruel and unusual punishments which is dynamic and “progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” Id. at 378, 30 S.Ct. at 553. Second, the Court has expanded the amendment’s coverage beyond its prohibition on barbarous methods of punishment, to encompass such protections as a guarantee that penalties will be proportionate to the offenses for which they are imposed, see, e.g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), and a safeguard against inhumane conditions of confinement, including inadequate medical, care. See, e.g., Helling" }, { "docid": "23419141", "title": "", "text": "The Cruel and Unusual Punishment clause of the Eighth Amendment is applicable to the states through the Due Process clause of the Fourteenth Amendment. Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). The Civil Rights Act, 42 U.S.C. § 1983, creates a cause of action for deprivations, by persons acting under color of state law, of rights secured by the Constitution. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Persons confined in state prisons are within the protection of 42 U.S.C. § 1983. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963); Stiltner v. Rhay, 322 F.2d 314 (9th Cir. 1963). The right to be free from cruel and unusual punishment is one of the rights that a state prisoner may, in a proper case, enforce under § 1983. Talley v. Stephens, 247 F.Supp. 683 (E.D. Ark.1965); United States ex rel. Hancock v. Pate, 223 F.Supp. 202 (N.D.Ill. 1963); Redding v. Pate, 220 F.Supp. 124 (N.D.Ill.1963); Gordon v. Garrson, 77 F.Supp. 477 (E.D.Ill.1948); Lee v. Tahash, 352 F.2d 970, 972 (8th Cir. 1965) (Dictum). “What constitutes a cruel and unusual punishment has not been exactly decided.” Weems v. United States, 217 U.S. 349, 368, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910). This statement is as true today as it was in 1910. It is possible, however, to identify three general approaches to the question. See Rudolph v. Alabama, 375 U.S. 889, 890-891, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963), (dissenting opinion of Goldberg, J.). The first approach is to ask whether under all the circumstances the punishment in question is “of such character * * * as to shock general conscience or to be intolerable to fundamental fairness.” Lee v. Tahash, supra, 352 F.2d at page 972. Such a judgment must be made in the light of developing concepts of elemental decency. Weems v. United States, supra, 217 U.S. at 378, 30 S.Ct. 544; Trop v. Dulles, 356 U.S. 86,100-101, 78 S.Ct." }, { "docid": "11826346", "title": "", "text": "Wilkerson v. Utah, 99 U.S. (9 Otto) 130, 135-136, 25 L.Ed. 345 (1878); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930,-34 L.Ed. 519 (1890); Weems v. United States, 217 U.S. 349, 368, 30 S.Ct. 544, 54 L.Ed. 793 (1910); Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). But this judicial silence is the result, not of oversight, but of foresight, for the Supreme Court has long recognized that “[t]ime works changes, brings into existence new conditions and purposes * * * [and] a principle to be vital must [therefore] be capable of wider application than the mischief which gave it birth.” Weems v. United States, supra, 217 U.S. at 373, 30 S.Ct. at 551. Indeed, “[t]he basic concept underlying the Eighth Amendment,” wrote Chief Justice Warren, “is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. * * * The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, supra, 356 U. S. at 100-101, 78 S.Ct. at 597-598. These “evolving standards of decency,” the Eighth Amendment, and the problem of narcotic addiction met head on in Robinson v. California, supra, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, in which the Court held that a California statute which made it a criminal offense to “be addicted to the use of narcotics” inflicted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Unfortunately, however, the precise basis of the decision was somewhat unclear. At one level of interpretation, the Court was clearly concerned over the fact that Robinson had been convicted simply for “being an addict,” “even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there.” If primary significance is attached to this aspect of the opinion, Robinson might be viewed quite narrowly as prohibiting only prosecution of those “criminals” who have committed" }, { "docid": "2303148", "title": "", "text": "time since periodic review has already been required. Indeed, to do so would be to intrude upon the exercise of the defendant’s lawful discretion in an impermissible way. See Kelly v. Brewer, 525 F.2d 394,399-400 (8th Cir. 1975). Thus, the conditions in the Control Unit (as modified by the district court) do not involve the kinds of punishment which would violate the Eighth Amendment. Similarly, we do not find a constitutional violation under the second analysis provided by the Supreme Court (involving proportionality) even though we agree that a punishment may be enjoined if it is so out of proportion to the offense that it constitutes cruel and unusual punishment. In the leading case of Weems v. United States, 217 U.S. 349, 366-367, 30 S.Ct. 544, 548-549, 54 L.Ed. 793 (1910), a sentence of 12 years at hard labor and the loss of many civil rights was imposed for the crime of falsifying a public document and was said to “amaze” those who “believe that it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” The use of denationalization as a punishment for desertion from the navy in time of war was also successfully challenged as cruel and unusual punishment under the Eighth Amendment in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). This court has recognized in an earlier stage of this litigation that the proportionality principle may be applied to punishment within a prison for disciplinary offenses. Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973). But as we noted in that case, disproportionality “is partly a question of fact and wholly one of degree.” 488 F.2d 619, 636. Appellants have not demonstrated that the conditions in the Control Unit, as it now exists, are so disproportionate to the seriousness of the offenses for which the inmates were convicted that they constitute cruel and unusual punishment. We also hold that for purposes of the Eighth Amendment the practices which appellants challenge are not unrelated to valid penological objectives such as deterrence, rehabilitation and institutional security" }, { "docid": "11786380", "title": "", "text": "condones solitary confinement as a mode of punishment and the courts hold that solitary confinement is not per se cruel and unusual. E. G., Novak v. Beto, 453 F.2d 661, 665 (5th Cir. 1971). Solitary confinement may, however, result in cruel and unusual punishment if carried out in a manner that is “inhuman” and “violative of [the] basic concepts of [human] decency.” Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L. Ed.2d 630 (1958). The eighth amendment prohibits “cruel and unusual punishment.” Since Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the amendment’s prohibition is applicable to the states through the fourteenth amendment. An intended purpose of the Civil Rights Act was to enforce the provisions of the fourteenth amendment. Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 5 L.Ed.2d 492, 496 (1961). 42 U.S.C. 1983 gives a remedy — an action at law, suit in equity, or other proper proceeding — to people deprived of constitutional rights, privileges, and immunities by an official’s abuse of his position. Although the framers of the Constitution gave no precise definition to the phrase “cruel and unusual punishment,” it has been said that “ordinarily the terms imply something inhuman and barbarous, — torture ■ and the like.” Weems v. United States, 217 U.S. 349, 368, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910). The basic concept underlying the eighth amendment has been articulated as “nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.” Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 597, 2 L.Ed.2d 630, 642 (1958). Noting that a “principle, to be vital, must be capable of wider application than the mischief which gave it birth,” the Court held that the eighth amendment “is not fastened to the obsolete, but may acquire meaning as public opinion becomes en lightened by a humane justice.” Weems v. United States, supra, 217 U.S. at 373, 378, 30 S.Ct. at 551, 553. In" }, { "docid": "13541319", "title": "", "text": "leather strap. It is more the reasoning of these two cases which persuades us than the similarity of the practices to that complained of in our instant case. • We have previously quoted the holding of Estelle v. Gamble, supra. But the reasoning supplied by Mr. Justice Marshall’s opinion is certainly not limited by its terms to the medical treatment problem with which he was dealing: The history of the constitutional prohibition of “cruel and unusual punishments” has been recounted at length in prior opinions of the Court and need not be repeated here. See, e. g., Gregg v. Georgia, 428 U.S. 153, 169-173 [96 S.Ct. 2903, 2909, 49 L.Ed.2d 859] (1976) (joint opinion of Stewart, Powell, and Stevens, JJ. (hereinafter joint opinion)); see also Granucci, Nor Cruel and Unusual Punish ment Inflicted: The Original Meaning, 57 Calif.L.Rev. 839 (1969). It suffices to note that the primary concern of the drafters was to proscribe “torture[s]” and other “barbar[ous]” methods of punishment. Id., at 842. Accordingly, this Court firs c applied the Eighth Amendment by comparing challenged methods of execution to concededly inhuman techniques of punishment. See Wilkerson v. Utah, 99 U.S. 130, 136 [25 L.Ed. 345] (1878) (“[I]t Is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . ”); In re Kemmler, 136 U.S. 436, 447 [10 S.Ct. 930, 933, 34 L.Ed. 519] (1890) (“Punishments are cruel when they involve torture or a lingering death . .”). Our more recent cases, however, have held that the Amendment proscribes more than physically barbarous punishments. See, e. g., Gregg v. Georgia, supra [428 U.S.] at 171 [96 S.Ct. at 2924] (joint opinion); Trop v. Dulles, 356 U.S. 86, 100-101 [78 S.Ct. 590, 597, 598, 2 L.Ed.2d 596] (1958); Weems v. United States, 217 U.S. 349, 373 [30 S.Ct. 544, 551, 54 L.Ed. 793] (1910). The Amendment embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . . ,” Jackson v. Bishop, 404 F.2d 571, 579 (CA8 1968), against which we" }, { "docid": "23278676", "title": "", "text": "that the district court was legally obligated to sentence Reingold to the minimum five-year prison term mandated by 18 U.S.C. § 2252(b)(1) for any distribution of child pornography. It submits that the district court erred as a matter of law in holding that the application of that mandated minimum sentence to Reingold would violate the Eighth Amendment. We review de novo a district court’s “[e]onclusions of law, including those involving constitutional questions,” United States v. Fell, 531 F.3d 197, 209 (2d Cir.2008), and here conclude that the district court erred in holding the mandatory minimum sentence unconstitutional. B. Standards Applicable to Eighth Amendment Analysis The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. In identifying cruel and unusual punishments, the Supreme Court has not limited itself to “historical conceptions” of impermissible sanctions, Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010), but has looked to “ ‘the evolving standards of decency that mark the progress of a maturing society,’ ” Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)). A punishment will be deemed “cruel and unusual” not only when it is “inherently barbaric,” but also when it is “disproportionate to the crime.” Graham v. Florida, 130 S.Ct. at 2021; see Harmelin v. Michigan, 501 U.S. 957, 997-98, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment) (tracing history of proportionality principle). 1. General Principles of Constitutional Proportionality This appeal focuses on the proportionality aspect of Eighth Amendment jurispru- denee. The Supreme Court first interpreted the Eighth Amendment to prohibit “ ‘greatly disproportioned’ ” sentences in Weems v. United States, 217 U.S. 349, 371, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (quoting O’Neil v. Vermont, 144 U.S. 323, 340, 12 S.Ct. 693, 36 L.Ed. 450 (1892) (Field, J., dissenting)). Since then, the Court has emphasized that constitutional proportionality is" }, { "docid": "9350703", "title": "", "text": "err in deciding that the disciplinary beatings shown by this record constituted cruel and unusual punishment. The 8th Amendment prohibition against cruel and unusual punishment is binding on the states through the 14th Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947). The meaning of cruel and unusual punishment in law has varied through the course of history, and as the Court observed in Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958): The [8th Amendment] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. The district court’s decision meets tests that have been applied in decisions to determine whether the standards of decency in a maturing society have been met, i. e.: whether the punishment is disproportionate to the offense, Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910); and whether the severity or harshness of the punishment offends “broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968). The record before us discloses that the beatings employed by defendants are disproportionate to the offenses for which they are- used, and do not measure up to contemporary standards of decency in our contemporary society. There is nothing in the record to show that a less severe punishment would not have accomplished the disciplinary aim. And it is likely that the beatings have aroused animosity toward the School and substantially frustrated its rehabilitative purpose. We find in the record before us, to support our holding, general considerations similar to those the court in Jackson found relevant: (1) corporal punishment is easily subject to abuse in the hands of the sadistic and unscrupulous, and control of the punishment is inadequate; (2) formalized School procedures governing the infliction of the corporal punishment are at a minimum; (3) the infliction of such severe punishment frustrates correctional and rehabilitative goals; and (4) the current sociological trend" }, { "docid": "22538276", "title": "", "text": "nor excessive fines imposed, nor cruel and unusual punishments inflicted suggests action taken, usually by a court, in carrying out a legislative authorization or command. The language, as is well known, is practically a verbatim copy of the tenth clause of the English Bill of Rights, 1 Wm. & Mary, 2d sess., eh. 2 (1688), which, in turn, embodied a corresponding section of the Declaration of Rights that was a cornerstone of the settlement of the Glorious Revolution. Although George Mason, who drafted the similar clause in the Virginia Declaration of Rights, which was the more immediate progenitor of the Eighth Amendment, may have been mistaken in thinking that the provision was aimed merely at torturous rather than at excessive punishments, there can be no disagreement that what sparked the English provision was the conduct of judges under James II. ^The background of our own Bill of Rights/ however,^ makes clear that the Eighth Amendment was intended to apply not only to the acts of judges but as a restraint on legislative action as wellH See In re Kemmler, 136 U.S. 436, 446-447, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Weems v. United States, 217 U.S. 349, 371-373, 378-379, 30 S.Ct. 544, 54 L.Ed. 793 (1910); Furman v. Georgia, 408 U.S. 238, 266-269, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (concurring opinion of Mr. Justice Brennan). Undeed, every decision of the Supreme Court striking down a punishment under the Eighth Amendment has concerned a legislative act. Weems v. United States, supra; Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion of Chief Justice Warren); Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Furman v. Georgia, supra. We do not suggest, however, that the cruel and unusual punishment clause must necessarily be read as limited to acts of legislatures in authorizing sentences or of judges imposing them. It can fairly be deemed to be applicable to the manner in which an otherwise constitutional sentence, as the death penalty was then thought to be, is carried out by an executioner, see" }, { "docid": "11786381", "title": "", "text": "his position. Although the framers of the Constitution gave no precise definition to the phrase “cruel and unusual punishment,” it has been said that “ordinarily the terms imply something inhuman and barbarous, — torture ■ and the like.” Weems v. United States, 217 U.S. 349, 368, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910). The basic concept underlying the eighth amendment has been articulated as “nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.” Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 597, 2 L.Ed.2d 630, 642 (1958). Noting that a “principle, to be vital, must be capable of wider application than the mischief which gave it birth,” the Court held that the eighth amendment “is not fastened to the obsolete, but may acquire meaning as public opinion becomes en lightened by a humane justice.” Weems v. United States, supra, 217 U.S. at 373, 378, 30 S.Ct. at 551, 553. In Novak v. Beto, 453 F.2d 661 (5th Cir. 1971), Judge Thornberry, cautious not to “run the risk of imposing our own personal moral code on a perhaps unready society,” 453 F.2d at 665, carefully examined the eases which had previously concluded that certain prison conditions were so “base, inhuman and barbaric” that they violated the eighth amendment’s prohibition. His analysis led him to the recognition that “there is a common thread that runs through all these cases,” that thread being “the deprivation of basic elements of hygiene.” 453 F.2d at 665. Basic elements of hygiene were nonexistent in the solitary cell at the Brazos County jail at the time of plaintiff's confinement. As a legal conclusion, this court finds that during the period of time that plaintiff was confined in the solitary cell in the Brazos County jail the general conditions of the cell and treatment of plaintiff were collectively so inhumane as to violate the plaintiff’s eighth amendment right to be free from cruel and unusual punishment. The court finds the evidence insufficient, however," }, { "docid": "9392376", "title": "", "text": "to the question of damages, suffice it to say that it is not raised, of course, by plaintiff’s motion. Insofar as it may be relevant to defendants’ motion to dismiss — since defendants contend that plaintiff’s damages, if any, clearly do not exceed $10,000 — it need only be observed that jurisdiction here is not predicated on 28 U.S.C. § 1331 (federal question) but on 28 U.S.C. § 1343(3) (deprivation of constitutional rights under color of state law). III. I come now to the merits of the Lollis case. The Eighth Amendment’s prohibition of cruel and unusual punishment is binding on the states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Francis v. Res weber, 829 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947). The concept of cruel and unusual punishment has, of course, varied through the course of history, and, as the court observed in Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed. 2d 630 (1958): “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Two tests have been applied to determine whether the Amendment applies : first, whether the punishment is disproportionate to the offense, Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1909); second, the severity or harshness of the sanction as measured by “broad and idealistic concepts of dignity, civilized standards, humanity, and decency * * * ” Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968), Opinion of Judge (now Mr. Justice) Blackmun. In support of Lollis’ motion there have been submitted the affidavits of seven psychiatrists, psychologists, and educators of delinquent juveniles. They are unanimous in their condemnation of extended isolation as imposed on children, finding it not only cruel and inhuman, but counterproductive to the development of the child. This group is made up of men and women of high standing and expertise. Most surprisingly, although the key to decision of the Eighth Amendment issue lies in a determination as" }, { "docid": "11528786", "title": "", "text": "the infliction of both physical and mental suffering. The discussion will now turn to applicable legal standards, upon which the constitutionality of overcrowding and the other challenged conditions must stand or fall. IV. THE LEGAL STANDARDS: ANALYSIS AND CONCLUSIONS A. Jurisdiction Subject matter jurisdiction over the claims arising under the United States Constitution and filed pursuant to 42 U.S.C. § 1983 is conferred by 28 U.S.C. § 1343(a)(3) and (4). Claims arising under the Tennessee Constitution and statutes are cognizable under the doctrine of pendent jurisdiction, in accordance with the principles laid down in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). B. The Eighth Amendment The Eighth Amendment to the United States Constitution, insofar as is relevant here, prohibits the imposition of “cruel and unusual punishment.” Originally applicable only to the federal government, the provision now clearly applies to the states by virtue of incorporation into the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Cf. Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475, 18 L.Ed. 608 (1867). The intent of the amendment’s framers is uniformly accepted as being the prohibition of tortuous and physically barbaric punishments such as drawing and quartering, di semboweling and burning at the stake. However, from the first Supreme Court case to actually construe the Eighth Amendment’s language, the principle that its protection must always be examined in light of developing thought has been consistently applied. See Wilkerson v. Utah, 99 U.S. (9 Otto) 130, 135-36, 25 L.Ed. 345, 347-48 (1879). Over the years, the meaning of the ban on cruel and unusual punishment has been expanded to encompass more than the mere prohibition of torture. Punishments have been found to violate the Eighth Amendment even in the absence of the infliction of physical pain, if they were unconscionably excessive in relation to the offense committed. See, e.g., Trop v. Dulles, 356 U.S. ,86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion) (denationalization as punishment for wartime desertion). The cruel and unusual punishments clause has also been used to" } ]

[ { "docid": "19065153", "title": "", "text": "of the same class. See CoHier on. Bankruptcy, ¶ 1122.03[1] at 1122-4 (15th Ed. 1979). The propriety of drawing classifications appears to be governed by § 1322(b)(1) while the propriety of including a claim in a particular class is controlled by § 1122. Classifications of unsecured creditors in Chapter 13 are permissible unless “unfairly discriminatory.” The determination of what constitutes unfair discrimination requires a view of the nature of the claims in each proposed class and the treatment to be accorded them. One recent decision, In re Iacovoni, 2 B.R. 256, 5 B.C.D. 1270 (D.Utah) would allow classification of claims only where justified by differences in creditors’ rights. Since the rights of all unsecured creditors vis-a-vis the debtor are the same, virtually all classifications of unsecured claims are “unfairly discriminatory” under the Iacovoni rationale. The opinion states at 1272, 2 B.R. at 260: The only apparent exception to a uniform classification of unsecured creditors, other than equitable subordination, is found in Section 1122(b) which codifies the “administrative convenience exception” developed by former case law. This position has the vice of effectively emasculating § 1322(b)(1), which provision is a significant departure from prior law. Moreover, the language of the statute is inconsistent with the narrow scope attributed to it by Iacovoni. Only “unfair discrimination” is prohibited by § 1322(b)(1), not discrimination generally. The inferential authorization of reasonable discrimination compels the conclusion that the touchstone of “unfair discrimination” cannot be solely the nature of the creditor’s claim against the debtor. As Iacovoni indicates, there is no rational way to distinguish unsecured claims on that basis. Other factors must be taken into account, such as the creditor’s rights, if any, against third parties and the importance of the classification to the debtor’s “fresh start,” and to his ability to perform under the plan. The propriety of each proposed classification should be considered with reference to the facts of the case. Sound judicial discretion should be exercised in determining whether, from both the creditor’s and debtor’s point of view, a proposed classification is unfairly discriminatory. In this case two justifications are offered by the" } ]

[ { "docid": "4713525", "title": "", "text": "shall- (3) if the plan classifies claims, provide the same treatment for each claim within a particular class. (b) Subject to subsections (a) and (c) of this section, the plan may- (1) designate a class or classes of unsecured claims, as provided in section 1122 of this title, but may not discriminate unfairly against any class so designated . . . ” 11 U.S.C. §§ 1322(a)(3), (b)(1) 11 U.S.C. § 1122 reads: “§ 1122 Classification of claims or interests (a) Except as provided in subsection (b) of this section, a plan may place a claim or an interest in a particular class only if such claim or interest is substantially similar to the other claims or interests of such class. (b) A plan may designate a separate class of claims consisting only of every unsecured claim that is less than or reduced to an amount that the court approves as reasonable and necessary for administrative convenience. These provisions do allow the separate classification of an unsecured claim (or claims); there is no requirement that all claims which are “substantially similar” be placed in the same class. In re Kovich, 4 B.R. 403 (Bkrtcy., W.D.Mich., 1980); 5 Col lier on Bankruptcy § 1122.03 (15th Ed. 1979) p. 1122-4. Therefore, the Chapter 13 plan at bar could not be denied confirmation solely on the ground that it places the landlord’s unsecured claim in a class separate from the other unsecured claims. 2. Although the separate classification of the landlord’s claim is permissible, any difference between the way the landlord is treated and the way the other unsecured creditors are treated is subject to the “unfair discrimination” test of 11 U.S.C. § 1322(bXl). Some degree of discrimination is allowable; otherwise Congress wouldn’t have modified the term with the word “unfair.” Collier’s position is that a difference in percentages to be paid to classes of unsecured creditors is not necessarily “unfair.” 5 Collier, supra ¶ 1322.01; see also In re Sutherland, 3 B.R. 420, 6 Bankr.Ct. Dec. 13 (W.D.Ark.1980). Judge Howard of this Court made the following observation about extra payment on a landlord’s" }, { "docid": "13165964", "title": "", "text": "a class must contain claims which are homogeneous or substantially similar. Barnes v. Whelan, 689 F.2d at 201, 9 B.C.D. at 634. As such claims which have been guaranteed by third parties may be classified separately from other unsecured claims if there is no unfair discrimination between the classes of claims which are so classified. II DOES THE PLAN UNFAIRLY DISCRIMINATE AGAINST THE CLASS OF UNSECURED CLAIMS WHICH HAVE NOT BEEN GUARANTEED BY THIRD PARTIES? If a plan classifies claims, § 1322(b)(1) requires that the plan “may not discriminate unfairly against any class so designated.” A classification is not ipso facto unfairly discriminatory because it provides for a greater percentage of payment to some unsecured creditors than to others. A debtor, however, bears the burden of showing that the proposed classification does not unfairly discriminate. In re Wolff, 22 Bankr. 510 (Bankr.App. 9th Cir.1982). This is consistent with the burden on the Chapter 13 debtor to show that the proposed plan ought to be confirmed. In re Elkind, 11 Bankr. 473 (Bankr.D.Co. 1981); In re Crago, 4 Bankr. 483 (Bankr. S.D.OH 1980). Worthen Bank & Trust Co. v. Cook, 26 B.R. at 190, 9 B.C.D. at 1378. The early attempts to formulate a rule for unfair discrimination used the “rational” approach. Under this approach, courts looked to see if there was a rational basis for the discrimination between the two classes to determine if the discrimination was “fair”. Looking at whether there was a rational reason for the separate treatment, each case was determined on its own facts and the outcome has been quite diverse. In re Fizer, 5 B.C.D. 1052, 1 B.R. 400 (Bkrtcy.S.D.Ohio 1979), found “no rational basis” for a plan which paid one hundred (100%) percent to one class and nothing to the other class; plan denied. In re Curtis, 5 B.C.D. 1214, 2 B.R. 43 (Bkrtcy.W.D.Mo.1979) found a rational basis for a plan which paid one hundred (100%) percent to a claim for child support and ten (10%) percent to the other unsecured claims; plan approved. In re Haag, 3 B.R. 649 (Bkrtcy. D.Or.1980) found a" }, { "docid": "10211343", "title": "", "text": "that all creditors with unsecured claims have identical legal rights in the debtor’s estate, and it takes some extraordinary difference between them to allow division into classes. An earlier case, In re Curtis, 2 B.R. 43 (W.D.Mo.1979) found such a difference. Using the “rational” standard, Judge Stewart held that child support payments could be made in full, even if other creditors were disadvantaged, since child support is a nondischargeable debt. On the liberal side of the fence, In re Sutherland, 3 B.R. 420, 6 B.C.D. 13 (W.D.Ark.1980) rejected any sort of standard, claiming that no such animal as “unfair discrimination” could exist when the debtor was not obligated to pay the creditors anything more than they would receive under a Chapter 7 (i. e., nothing). Most of the cases that follow Sutherland rest on the assumption that virtually all Chapter 13 plans are confirmable, even those with minimal or 0% payout on unsecured claims. Courts that lean towards the 70% or “meaningful contribution” positions on Chapter 13 plans tend to find differing payouts unfair discrimination prohibited by the Code. In any case, the Sutherland view that “unfair discrimination” was irrelevant language in the Code, capable of being totally ignored, has not been widely adopted. The emerging trend, as much as one can be discerned, seems to be a close analysis of the “unfairly discriminatory” language with an eye towards what is practical for the debtor. Thus many courts have found payment in full on cosigned debts to be unfairly discriminatory (especially when the cosigner is a member of the debtor’s family), at least without a showing as to why this particular debt or particular relationship with the cosigner deserves preference. In re Cooper, 3 B.R. 246 (S.D.Cal.1980) (discriminates on face by paying cosigned debt in full); In re Montano, 4 B.R. 535 (D.C. 1980) (mere existence of a co-debtor is not legally sufficient to justify separate classification); In re Crago, 4 B.R. 483 (S.D.Ohio 1980) (discriminatory treatment of cosigner who was father of one of the debtors); In re Wade, 4 B.R. 98 (M.D.Tenn.1980) (discriminatory treatment of debts cosigned by" }, { "docid": "13144673", "title": "", "text": "The statute, however, allows a debtor to classify unsecured claims for the purpose of treating some more favorably than others. Of course, the class discriminated against will probably consider any such discrimination patently unfair. The statute’s allowance for “fair” discrimination underscores the difference between chapter 7 and chapter 13. As one court pointed out, “Debtors, especially those with numerous creditors, should be afforded the discretion to draft plans to best organize their financial affairs from their own personal perspective.” Led-ford v. McCormick, 27 B.R. 434, 438 (Bkrtcy. S.D.Ohio 1983). This case illustrates how easily classes can be created. Avco’s claim and the claim of Sears, Roebuck and Company were classified together on the ground that each exceeds $500.00. They are substantially similar in that respect. But the underlying reason for classification is more important to the extent it is relevant to whether the plan unfairly discriminates against a class. The stronger the reasons for treating some creditors more favorably, the more likely it is that the class discriminated against is being treated fairly. This leads the court to the questions put forth in In re Kovich, 4 B.R. 403, 407, 6 B.C.D. 482, 484, 2 C.B.C.2d 203, 207-208 (Bkrtcy.W.D.Mich.1980). (1) Whether the discrimination has a reasonable basis; (2) whether the debtor can carry out a plan without such discrimination; (3) whether such discrimination is proposed in good faith; and (4) the treatment of the class discriminated against. Accord, In re Wolff, 22 B.R. 510, 9 B.C.D. 451, 6 C.B.C.2d 1282 (Bkrtcy.App. 9th 1982); In re Cook, 26 B.R. 187, 9 B.C.D. 1377, 7 C.B.C.2d 1079 (D.C.D.N.M.1982); In re Dziedzic, 9 B.R. 424, 7 B.C.D. 497, 4 C.B.C.2d 1 (Bkrtcy.S.D.Tex.1981). The court believes these cases adopt a good approach to classification disputes and will apply the four tests generally, without separate discussion. Only the objecting creditor, Avco, and Sears have claims exceeding $500.00. Sears’ claim is about $560.00 and will be almost paid in full under the plan as proposed. The burden of the discrimination falls on Avco’s claim for $3,500. It will be paid about $800, or 23% of the" }, { "docid": "13165960", "title": "", "text": "1 C.B.C.2d 331 (Bkrtcy.D.Utah 1980) as authority for such interpretation. Iacovoni relied on 5 Collier on Bankruptcy ¶ 1122.03 at 1122.7 (15th ed. 1979), where “substantially similar” is construed to mean “similar in legal character or affect as a claim against a debtor’s assets or as an interest in the debtor.” Iacovoni states that such construction means that “only debts which have identical legal right in the debtor’s (or the estate’s) assets may be classified together,” and then concludes that since all unsecured creditors have similar rights, § 1122 does not allow classification of a co-signed debt. Iacovoni, 5 B.C.D. at 1272, 2 B.R. at 260, 1 C.B.C.2d at 338. Another view was expressed in In re Sutherland, 6 B.C.D. 13, 3 B.R. 420 (Bkrtcy.W.D.Ark.1980) when the court held that classification of unsecured debts was allowed because there was no unfair discrimination since the plan proposed to pay each unsecured creditor at least as much as he would receive in a Chapter 7 case. This view of classification of debts and unfair discrimination has not been widely followed. The majority of the reported cases indicate the view that each case must be considered on the basis of its facts in determining whether the classification unfairly discriminates against a class of claims. Barnes v. Whelan, 689 F.2d 193, 9 B.C.D. 626 (D.C.Cir.1982); Worthen Bank & Trust Co. v. Cook, 26 B.R. 187, 9 B.C.D. 1377 (D.C.N.M.1982); In re Dziedzic, 7 B.C.D. 497, 9 B.R. 424 (Bkrtcy.S.D.Tex.1981); In re Kovich, 4 B.R. 403, 2 C.B.C.2d 203 (Bkrtcy. W.D.Mich.1980). This approach has been said to be the best reasoned and most consistent with the Bankruptcy Code’s purpose that Chapter 13 be a flexible vehicle for reorganization of debts. Worthen Bank & Trust Co. v. Cook, 26 B.R. at 190, 9 B.C.D. at 1378. Furthermore, this approach is necessary if the classification provisions of § 1322(b)(1) are to have any meaning. Id. The court, in Barnes v. Whelan, supra, refusing to follow the holding in Iacovoni, stating that the “plain language of the statute [11 U.S.C. § 1122(a) ] contradicts such a construction.” Barnes" }, { "docid": "18771133", "title": "", "text": "which proposed that a partially secured creditor receive 100% and unsecured creditors 30%. In In re Cooper, 3 B.R. 246, 6 B.C.D. 81, (Bkcy.Ct.S.D.Cal. 1980), the Court held that a plan cannot be confirmed because full payment of an unsecured claim of a secured creditor discriminates unfairly against unsecured creditors receiving only 70% payment, and another secured creditor receiving only 70% on its unsecured claim. No justification for the discrimination was shown. In In re Gay, 3 B.R. 336, 6 B.C.D. 149 (Bkcy.Ct.D.Colo. 1980), the plan established two classes of unsecured claims, one of claims of creditors to whom the debtor had issued bad checks and the other of all other unsecured claims. The debtor proposed to pay the first class in full and to pay second class at 2% dividend. The Court held that the possibility of criminal proceedings by creditors holding bad checks did not justify discriminatory treatment. I was able to find three cases which dealt with the question of separate classification for codebtor obligations. In re Fonnest, 5 B.C.D. 1236 (Bkcy.Ct.N.D.Cal.1980); In re Iacovoni, 2 B.R. 256, 5 B.C.D. 1270 (Bkcy.Ct. D.Utah 1980) and In re McKenzie, 4, B.R. 88, 6 B.C.D. 19 (Bkcy.Ct.W.D.N.Y.1980). The Fonnest case held there is no reason existing for differentiating a codebtor note. In Iacovoni and McKenzie the courts held that all unsecured creditors have the same rights against the debtor’s property, even though that property is future income, and Section 1122 does not permit a separate classification based upon the presence of a codebtor. Bankruptcy Judge Joe Lee in his excellent article on Chapter 13 also states that a separate class cannot be provided for co-debtor obligations. Lee Chapter 13 nee Chapter XIII, 53 Am.Bankr.L.J., pp. 303, 313 (1979). Section 1122(a) requires that a class may contain only substantially similar claims. As indicated above there is no requirement that all substantially similar claims be placed in the same class. Therefore, separate classifications for obligations involving a codebtor and landlord are not forbidden by the Code. Pursuant to Section 1322(b)(1) such classification must not “discriminate unfairly”. The fact that these creditors" }, { "docid": "10211342", "title": "", "text": "1 B.R. 400 at 402. An interesting approach was taken in a widely-followed opinion, In re Iacovoni, 2 B.R. 256 (D.Utah 1980). Judge Mabey resolved the controversy surrounding § 1822 by concluding the drafters had intended only “debts which have identical legal rights in the debtor’s (or estate’s) assets may be classified together.” 2 B.R. 256 at 260. In re McKenzie, 4 B.R. 88 (W.D.N.Y.1980) adopted this position, stating that “the criteria by which similarity or dissimilarity of interests or rights is to be deter-: mined are to be found in the nature of those interests or rights, vis-a-vis only the bankruptcy estate.” 4 B.R. 88 at 90. However, while this approach may on its face appear to include the decision in In re Hill, 4 B.R. 694 (D.Kan.1980), which allowed similar creditors (i. e., doctors) to be grouped together and given differential treatment, Iacovoni mandates only minimal classification, since it refused to confirm a plan which paid in full a debt on which there was a cosigner. The presumption in Iacovo-ni seems to be that all creditors with unsecured claims have identical legal rights in the debtor’s estate, and it takes some extraordinary difference between them to allow division into classes. An earlier case, In re Curtis, 2 B.R. 43 (W.D.Mo.1979) found such a difference. Using the “rational” standard, Judge Stewart held that child support payments could be made in full, even if other creditors were disadvantaged, since child support is a nondischargeable debt. On the liberal side of the fence, In re Sutherland, 3 B.R. 420, 6 B.C.D. 13 (W.D.Ark.1980) rejected any sort of standard, claiming that no such animal as “unfair discrimination” could exist when the debtor was not obligated to pay the creditors anything more than they would receive under a Chapter 7 (i. e., nothing). Most of the cases that follow Sutherland rest on the assumption that virtually all Chapter 13 plans are confirmable, even those with minimal or 0% payout on unsecured claims. Courts that lean towards the 70% or “meaningful contribution” positions on Chapter 13 plans tend to find differing payouts unfair discrimination" }, { "docid": "10180213", "title": "", "text": "and necessary for administrative convenience...” Id. at § 1122. These two sections allow debtors to segregate certain claims or interests so long as those claims grouped together are substantially similar. In re Iacovoni, 2 B.R. 256, 5 B.C.D. 1270 (Bkrtcy., D.Utah 1980) In addition, the creation of separate class of creditors will be sanctioned if the classification does not unfairly discriminate against those creditors which fall outside of the class. Matter of Curtis, 2 B.R. 43 (Bkrtcy., W.D.Mo.1979) Thus § 1122(a) prevents discrimination occasioned by amalgamating dissimilar claims into one class to gerrymander a plan around typical multi-creditor difficulties faced by debtors. Section 1322(b)(1) focuses on the different situations wherein more than one class exists and the plan, by irrationally based dividends, attempts to provide more favorable treatment to one class. Although § 1322(b)(1) literally addresses discrimination between classes, logically it is suited to govern situations where payments to creditors outside the plan “discriminate unfairly against any class so designated.” Despite the fact that § 1322 and § 1122 prevent the debtor from running roughshod over creditors by creditor classification, the two sections jointly do not compel that all substantially similar creditors be classed together. Collier on Bankruptcy, 14 Ed., Vol. 5, p. 1122-4. Claims “substantially similar” are similar in legal character or effect against the debtor’s estate. Id. A reasoned interpretation of § 1322’s “unfair discrimination” language would permit discrimination between claims, even if similar in nature, as long as such discrimination was not unfair. To interpret otherwise would result in a superfluous existence for § 1322. Id. Support for this interpretation is extensive. See In re Sutherland, 3 B.R. 420, 6 B.C.D. 13 (Bkrtcy., W.D.Ark.1980) (discriminatory treatment of unsecured creditors not unfair); Matter of .Curtis, 2 B.R. 43 (Bkrtcy., W.D.Mo.1979) (discrimination through extra payment for child support not unfair); In re Kovich, 4 B.R. 403, 2 C.B.C.2d 203 (Bkrtcy., W.D.Mich.1980) (discrimination unfair); In re Fizer, 1 B.R. 400 (Bkrtcy., S.D.Ohio 1979) (classification wherein partially secured creditors received 100% and unsecured creditors received 30% held unfair); In re Cooper, 3 B.R. 246, 6 B.C.D. 81 (Bkrtcy., S.D.Cal.1980) (full payment" }, { "docid": "4687420", "title": "", "text": "many cases. Three distinct interpretations have emerged. The most liberal interpretation is represented by In re Sutherland, 3 B.R. 420 (Bkrtcy.W.D.Ark.1980). In Sutherland, the court held that there is no unfair discrimination where the unsecured creditor receives at least as much as he would in a Chapter 7 liquidation proceeding. This interpretation of § 1322(b)(1) relies on reading the provisions of § 1325(a)(4) into the definition of “unfair discrimination.” Section 1325(a)(4) provides: (a) The court shall confirm a plan if— ****** (4) The value, as of the effective date of the plan, of property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under Chapter 7 of this title on such date. Under the Sutherland interpretation, almost any treatment of an unsecured creditor is acceptable if a debtor’s affairs are such that the creditor would receive nothing in a Chapter 7 proceeding. The Sutherland view has not been widely followed, In re Dziedzic, 9 B.R. 424, 426 (Bkrtcy.S.D.Tex.1981), although other courts have used the Sutherland test as a factor in determining whether the classification is rational. See, e.g., In re Kovich, 4 B.R. 403 (Bkrtcy.W.D.Mich.1980). The Sutherland approach fails to give significance to the “unfair discrimination” language of § 1322. Chapter 7 and Chapter 13 are not interchangeable. The Sutherland approach results in allowing debtors to retain their assets and invoke the § 1301 stay of actions against co-debtors while discharging entirely most of their unsecured debts. The net result is much like a Chapter 7 proceeding with reaffirmation of secured debts and those few unsecured debts the debtor wishes to pay. In re Nickels, 4 B.R. 481 (Bkrtcy.S.D.Ohio 1980). This blurring of the distinction between Chapter 13 and Chapter 7 proceedings is not warranted. Although both are aimed at providing a “fresh start” for the debtor, Chapter 13 is designed to promote creditor interests by making future income available for the payment of debts and to promote debtor interests by preserving the debtor’s assets," }, { "docid": "4713526", "title": "", "text": "claims which are “substantially similar” be placed in the same class. In re Kovich, 4 B.R. 403 (Bkrtcy., W.D.Mich., 1980); 5 Col lier on Bankruptcy § 1122.03 (15th Ed. 1979) p. 1122-4. Therefore, the Chapter 13 plan at bar could not be denied confirmation solely on the ground that it places the landlord’s unsecured claim in a class separate from the other unsecured claims. 2. Although the separate classification of the landlord’s claim is permissible, any difference between the way the landlord is treated and the way the other unsecured creditors are treated is subject to the “unfair discrimination” test of 11 U.S.C. § 1322(bXl). Some degree of discrimination is allowable; otherwise Congress wouldn’t have modified the term with the word “unfair.” Collier’s position is that a difference in percentages to be paid to classes of unsecured creditors is not necessarily “unfair.” 5 Collier, supra ¶ 1322.01; see also In re Sutherland, 3 B.R. 420, 6 Bankr.Ct. Dec. 13 (W.D.Ark.1980). Judge Howard of this Court made the following observation about extra payment on a landlord’s unsecured claim: “. . . The fact that these creditors receive more than other unsecured creditors, certainly is a form of discrimination. But it is not necessarily unfair. . (B)eeause of a debtor’s financial and family situation and the availability of other housing, it may be necessary to make a special provision for past due rent. Such classifications may not be unfair to other unsecured creditors because if they are not permitted the debtor may be forced to file under Chapter 7 and they may receive nothing. Therefore, the classifications are not ipso facto unfair discrimination.” In re Kovich, 4 B.R. 403, at p. 407 (Bkrtcy.W.D.Mich.1980). Asthe Kovich opinion points out, however, each case must be decided on its own merits; and one consideration in determining whether a Chapter 13 plan discriminates unfairly is the treatment of the class discriminated against, and, specifically, whether these creditors are to receive a meaningful payment. Id. Unlike Kovich, the amount of the proposed payment to the other unsecured creditors is at issue in this case. Since the amount" }, { "docid": "18771132", "title": "", "text": "be paid the particular class. If the courts were to construe as unfair discrimination a proposal to pay a particular class of claims a greater percentage than some other class, section 1822(b)(1) would be deprived of most of its meaning. On the other hand, a proposal to defer distribution on the claims of one class of general unsecured claims until after the completion of payments to another class might very well be considered unfair discrimination against the deferred class, depending on the circumstances of the case.” Collier on Bankruptcy, supra, p. 1322-7. (Emphasis Supplied) Other bankruptcy courts have held that separate classifications of unsecured claims constitute unfair discrimination in situations similar to the one before this Court. In re Fizer, 1 B.R. 400, (Bkcy.Ct.S.D.Ohio 1979), Judge Sidman held that no basis was advanced for the payment of a partially secured creditor in full while other unsecured creditors were to receive nothing and, therefore, the plan was unfair. In In re Blevins, 1 B.R. 442, C.B.C.2d 185, (Bkcy.Ct.S.D.Ohio 1979), Judge Sidman again held a plan unfair which proposed that a partially secured creditor receive 100% and unsecured creditors 30%. In In re Cooper, 3 B.R. 246, 6 B.C.D. 81, (Bkcy.Ct.S.D.Cal. 1980), the Court held that a plan cannot be confirmed because full payment of an unsecured claim of a secured creditor discriminates unfairly against unsecured creditors receiving only 70% payment, and another secured creditor receiving only 70% on its unsecured claim. No justification for the discrimination was shown. In In re Gay, 3 B.R. 336, 6 B.C.D. 149 (Bkcy.Ct.D.Colo. 1980), the plan established two classes of unsecured claims, one of claims of creditors to whom the debtor had issued bad checks and the other of all other unsecured claims. The debtor proposed to pay the first class in full and to pay second class at 2% dividend. The Court held that the possibility of criminal proceedings by creditors holding bad checks did not justify discriminatory treatment. I was able to find three cases which dealt with the question of separate classification for codebtor obligations. In re Fonnest, 5 B.C.D. 1236 (Bkcy.Ct.N.D.Cal.1980);" }, { "docid": "13165961", "title": "", "text": "been widely followed. The majority of the reported cases indicate the view that each case must be considered on the basis of its facts in determining whether the classification unfairly discriminates against a class of claims. Barnes v. Whelan, 689 F.2d 193, 9 B.C.D. 626 (D.C.Cir.1982); Worthen Bank & Trust Co. v. Cook, 26 B.R. 187, 9 B.C.D. 1377 (D.C.N.M.1982); In re Dziedzic, 7 B.C.D. 497, 9 B.R. 424 (Bkrtcy.S.D.Tex.1981); In re Kovich, 4 B.R. 403, 2 C.B.C.2d 203 (Bkrtcy. W.D.Mich.1980). This approach has been said to be the best reasoned and most consistent with the Bankruptcy Code’s purpose that Chapter 13 be a flexible vehicle for reorganization of debts. Worthen Bank & Trust Co. v. Cook, 26 B.R. at 190, 9 B.C.D. at 1378. Furthermore, this approach is necessary if the classification provisions of § 1322(b)(1) are to have any meaning. Id. The court, in Barnes v. Whelan, supra, refusing to follow the holding in Iacovoni, stating that the “plain language of the statute [11 U.S.C. § 1122(a) ] contradicts such a construction.” Barnes v. Whelan, 689 F.2d at 201, 9 B.C.D. at 634. Barnes v. Whelan, id. goes on to state: Moreover, section 1122(a) so interpreted would conflict with section 1322(b)(1), which specifically authorizes designation of more than one class of unsecured creditor, each presumably with equal legal rights to the debtor’s estate. We therefore hold that section 1122(a) does not prohibit Montano from grouping his unsecured obligations according to whether or not a codebtor is present. In re Hill, 6 B.C.D. 568, 4 B.R. 694, 2 C.B.C.2d 681 (Bkrtcy.D.Kan.1980) adopted this posture, stating: Sections 1322 and 1122(a) as well as 5 Collier on Bankruptcy, 15th Ed. § 1322.01 at 1322-7 leaves the impression that the permissive ability in the debtor to designate classes among his unsecured creditors is there not as mere decoration but to be used. The Collier comment, supra, at 1322-7 states: “Unfair discrimination against a class of claims would therefore seem to have reference either to the order of distribution or the percentage to be paid the particular class. If courts were to construe" }, { "docid": "18771131", "title": "", "text": "C.B.C.2d 314 (Bkcy.Ct.W.D.Mo. 1979). The Sutherland court held the debt- or could pay something to some unsecured creditors for medical and trade debts and nothing to other unsecured creditors because under the liquidation test of 11 U.S.C. § 1325(a)(4) unsecured creditors would receive nothing under Chapter 7, and consequently, there was no unfair discrimination. In Curtis the court held that a 100% payment on child support arrearage and 10% to other unsecured creditors was “fair” because child support was a nondischargeable debt. Collier also supports the proposition that payment of different percentages to unsecured creditors is not necessarily unfair discrimination: “No class of claims may be unfairly discriminated against. It remains to be seen how the courts will construe the prohibition against unfair discrimination. A chapter 13 plan proposing to pay less to the holder of any unsecured claim than would be received in the event of liquidation may not be confirmed. Unfair discrimination against a class of claims would therefore seem to have reference either to the order of distribution or the percentage to be paid the particular class. If the courts were to construe as unfair discrimination a proposal to pay a particular class of claims a greater percentage than some other class, section 1822(b)(1) would be deprived of most of its meaning. On the other hand, a proposal to defer distribution on the claims of one class of general unsecured claims until after the completion of payments to another class might very well be considered unfair discrimination against the deferred class, depending on the circumstances of the case.” Collier on Bankruptcy, supra, p. 1322-7. (Emphasis Supplied) Other bankruptcy courts have held that separate classifications of unsecured claims constitute unfair discrimination in situations similar to the one before this Court. In re Fizer, 1 B.R. 400, (Bkcy.Ct.S.D.Ohio 1979), Judge Sidman held that no basis was advanced for the payment of a partially secured creditor in full while other unsecured creditors were to receive nothing and, therefore, the plan was unfair. In In re Blevins, 1 B.R. 442, C.B.C.2d 185, (Bkcy.Ct.S.D.Ohio 1979), Judge Sidman again held a plan unfair" }, { "docid": "10180214", "title": "", "text": "over creditors by creditor classification, the two sections jointly do not compel that all substantially similar creditors be classed together. Collier on Bankruptcy, 14 Ed., Vol. 5, p. 1122-4. Claims “substantially similar” are similar in legal character or effect against the debtor’s estate. Id. A reasoned interpretation of § 1322’s “unfair discrimination” language would permit discrimination between claims, even if similar in nature, as long as such discrimination was not unfair. To interpret otherwise would result in a superfluous existence for § 1322. Id. Support for this interpretation is extensive. See In re Sutherland, 3 B.R. 420, 6 B.C.D. 13 (Bkrtcy., W.D.Ark.1980) (discriminatory treatment of unsecured creditors not unfair); Matter of .Curtis, 2 B.R. 43 (Bkrtcy., W.D.Mo.1979) (discrimination through extra payment for child support not unfair); In re Kovich, 4 B.R. 403, 2 C.B.C.2d 203 (Bkrtcy., W.D.Mich.1980) (discrimination unfair); In re Fizer, 1 B.R. 400 (Bkrtcy., S.D.Ohio 1979) (classification wherein partially secured creditors received 100% and unsecured creditors received 30% held unfair); In re Cooper, 3 B.R. 246, 6 B.C.D. 81 (Bkrtcy., S.D.Cal.1980) (full payment of an unsecured claim of secured creditor held to discriminate unfairly against unsecured creditors receiving 70% dividend when no justification for discrimination shown); In re Gay, 3 B.R. 336, 6 B.C.D. 149 (Bkrtcy., D.Colo.1980) (substantial discrimination between classes of unsecured creditors so as to avoid criminal prosecution not adequate justification). Contra In re Iaco-voni, supra. The cases which have examined debtors’ discrimination of unsecured creditors primarily have approached the issue in two ways. The first analyzes the discriminated creditor’s dividend under the plan in relation to his entitlement if instead the debtor chose Chapter 7 liquidation. This approach assumes that because the creditor stands to benefit more under the Chapter 13 plan than under a hypothetical Chapter 7 liquidation, no unfair discrimination exists. Sutherland, supra at 13 (dicta); Haag, supra 146. This court finds that although such an analysis has merit of a practical nature, it cannot be adopted as the sole test. To do so would ignore Sectionl322’s language allowing some discrimination and reduce it to an unnecessary restatement of Section 1325(a)(4). In addition," }, { "docid": "13165959", "title": "", "text": "a plan may place a claim or an interest in a particular class only if such claim or interest is substantially similar to the other claims or interests of such class. (b) A plan may designate a separate class of claims consisting only of every unsecured claim that is less than or reduced to an amount that the court approves as reasonable and necessary for administrative convenience. These sections of the Bankruptcy Code have been considered in numerous cases. Many cases have interpreted § 1122(a) as prohibiting a classification of unsecured debt based solely on the presence of a co-debtor. See, In re Utter, 6 B.C.D. 230, 3 B.R. 369, 1 C.B.C.2d 930 (Bkrtcy.W.D.N.Y. 1980); In re Wade, 4 B.R. 98 (Bkrtcy.M.D.Tenn.1980); In re Montano, 6 B.C.D. 487, 4 B.R. 535, 2 C.B.C.2d 431 (Bkrtcy.D.D.C. 1980) aff’d in part, vacated in part, sub nom. Barnes v. Whelan, 689 F.2d 193, 9 B.C.D. 626 (D.C.Cir.1982); In re Barker, 7 B.R. 707 (Bkrtcy. W.D.Mo.1980). These cases relied on In re Iacovoni, 5 B.C.D. 1270, 2 B.R. 256, 1 C.B.C.2d 331 (Bkrtcy.D.Utah 1980) as authority for such interpretation. Iacovoni relied on 5 Collier on Bankruptcy ¶ 1122.03 at 1122.7 (15th ed. 1979), where “substantially similar” is construed to mean “similar in legal character or affect as a claim against a debtor’s assets or as an interest in the debtor.” Iacovoni states that such construction means that “only debts which have identical legal right in the debtor’s (or the estate’s) assets may be classified together,” and then concludes that since all unsecured creditors have similar rights, § 1122 does not allow classification of a co-signed debt. Iacovoni, 5 B.C.D. at 1272, 2 B.R. at 260, 1 C.B.C.2d at 338. Another view was expressed in In re Sutherland, 6 B.C.D. 13, 3 B.R. 420 (Bkrtcy.W.D.Ark.1980) when the court held that classification of unsecured debts was allowed because there was no unfair discrimination since the plan proposed to pay each unsecured creditor at least as much as he would receive in a Chapter 7 case. This view of classification of debts and unfair discrimination has not" }, { "docid": "4687421", "title": "", "text": "In re Dziedzic, 9 B.R. 424, 426 (Bkrtcy.S.D.Tex.1981), although other courts have used the Sutherland test as a factor in determining whether the classification is rational. See, e.g., In re Kovich, 4 B.R. 403 (Bkrtcy.W.D.Mich.1980). The Sutherland approach fails to give significance to the “unfair discrimination” language of § 1322. Chapter 7 and Chapter 13 are not interchangeable. The Sutherland approach results in allowing debtors to retain their assets and invoke the § 1301 stay of actions against co-debtors while discharging entirely most of their unsecured debts. The net result is much like a Chapter 7 proceeding with reaffirmation of secured debts and those few unsecured debts the debtor wishes to pay. In re Nickels, 4 B.R. 481 (Bkrtcy.S.D.Ohio 1980). This blurring of the distinction between Chapter 13 and Chapter 7 proceedings is not warranted. Although both are aimed at providing a “fresh start” for the debtor, Chapter 13 is designed to promote creditor interests by making future income available for the payment of debts and to promote debtor interests by preserving the debtor’s assets, including employment or going concern value. 5 L. King, Collier on Bankruptcy ¶ 1300.02 (15th ed. 1979). The provisions of § 1325(a)(4) are a minimum standard and are not determinative of whether there is unfair discrimination between creditors. In re Nickels, supra; In re Dziedzic, supra. The most restrictive view taken of § 1322(b)(1) is expressed in In re Iacovoni, 2 B.R. 256 (Bkrtcy.D.Utah 1980). The Iaco-voni opinion relies on a comment in Collier’s which interprets § 1122: “Section 1122 permits classification of claims and interests subject to the restriction that a claim or interest may be included in a particular class only if it is “substantially similar” to other claims and interests of such class.... Although the Code does not provide elaboration with respect to the meaning of the phrase “substantially similar,” such phrase must be construed to mean similar in legal character or affect as a claim against the debtor’s assets or as an interest in the debtor.” 5 L. King, Collier on Bankruptcy ¶ 1122.03 (15th ed. 1979). On the basis of" }, { "docid": "19037211", "title": "", "text": "entitled to receive anything, they cannot be classified in an unfairly discriminatory manner. If a plan proposes to pay each unsecured claim at least as much as that claim would receive in liquidation under Chapter 7, the plan can propose to pay additional sums to a single unsecured creditor or classes of other unsecured creditors without unfairly discriminating. The debtors are paying more than is legally required and the Courts should not discourage such plans. Under circumstances where the debtors do not have to pay anything to any unsecured creditors, it makes no sense to have a system that prevents them from paying one or more unsecured creditor of their choosing. Surely the Bankruptcy Courts should not be in a position of telling debtors that they cannot voluntarily pay a creditor from property or future income in which other creditors have no rights. Under circumstances like these, this Court would allow a classification for unsecured creditors whose credit managers have redheaded secretaries. Who would be hurt? Maybe some creditor could meet this test and, if so, at least that creditor would be paid. The addition of a test of the rationality for classification of unsecured claims, in circumstances where unsecured claims are all receiving not less than they would receive in the event of liquidation under Chapter 7, is the equivalent of the Judiciary acting like the Congress. Congress was elected to enact legislation. They have enacted the new Bankruptcy Code. This Court is not inclined to judicially enact more or less than Congress has provided. Hillcrest’s objection on the basis of unfair discrimination against Class 6 is overruled. The debtors’ plan will be confirmed by separate Order. . Rational Basis Language Used In: In re Fizer, 1 B.R. 400 (Bkrtcy.1979) In re Blevins, 1 B.R. 442 (Bkrtcy.1979) In re Tatum, 1 B.R. 445 (Bkrtcy.1979) In re Curtis, 2 B.R. 43, 5 B.C.D. 1214 (1979)" }, { "docid": "10180215", "title": "", "text": "of an unsecured claim of secured creditor held to discriminate unfairly against unsecured creditors receiving 70% dividend when no justification for discrimination shown); In re Gay, 3 B.R. 336, 6 B.C.D. 149 (Bkrtcy., D.Colo.1980) (substantial discrimination between classes of unsecured creditors so as to avoid criminal prosecution not adequate justification). Contra In re Iaco-voni, supra. The cases which have examined debtors’ discrimination of unsecured creditors primarily have approached the issue in two ways. The first analyzes the discriminated creditor’s dividend under the plan in relation to his entitlement if instead the debtor chose Chapter 7 liquidation. This approach assumes that because the creditor stands to benefit more under the Chapter 13 plan than under a hypothetical Chapter 7 liquidation, no unfair discrimination exists. Sutherland, supra at 13 (dicta); Haag, supra 146. This court finds that although such an analysis has merit of a practical nature, it cannot be adopted as the sole test. To do so would ignore Sectionl322’s language allowing some discrimination and reduce it to an unnecessary restatement of Section 1325(a)(4). In addition, it fails to address the critical discrimination issue. Consequently, the analysis in Sutherland is not adopted here. The second approach, more in tune with the Code and its legislative history, recognizes that discrimination between creditors is proper in limited circumstances. Discrimination between classes is permitted when its purpose is rationally based or reasonable. In Re Haag, 3 B.R. 649, 2 C.B.C.2d 144 (Bkrtcy., D.Or.1980); Kovich, supra at 107; This necessitates a case by case analysis and rejects adoption of a blanket rule as proposed in some decisions, Iacovoni, supra; Sutherland, supra. Under the rational basis approach, the comparative benefit to a discriminated creditor under Chapter 13 as opposed to Chapter 7 is only one of many factors to be considered. Kovich, supra at 207. Other questions include: What is the reason for the classification? Is the classification essential to the plan? Has the debt- or proposed the classification in good faith? Is the payment to the class meaningful? Is the proposed classification important to the debtor’s “fresh start”? In the case at bar, the plan" }, { "docid": "18771130", "title": "", "text": "unsecured claims under Chapter 13 is permissive. However, if there is classification, it must be “as provided in Section 1122.” 11 U.S.C. § 1322(b)(1). A class can only contain claims which are “substantially similar.” 11 U.S.C. § 1122(a). There is no requirement that all claims which are “substantially similar” be placed in the same class. Collier on Bankruptcy, 15th Ed. Vol. 5, pp. 1122 — 4. The phrase “substantially similar” means similar in legal character or effect as a claim against the debtor’s assets. Id. A plan “may not discriminate unfairly” against any designated class of unsecured claims. 11 U.S.C. § 1322(b)(1). There is no question that the plans by paying a class consisting of one creditor in full and a class of all other unsecured creditors a percentage of their claims are discriminatory. But is the discrimination unfair? I have found two cases in which bankruptcy courts have permitted separate classes and treatment for unsecured debts. In re Sutherland, 3 B.R. 420, 6 B.C.D. 13 (Bkcy.Ct.W.D.Ark.1980) and In re Curtis, 2 B.R. 43, 1 C.B.C.2d 314 (Bkcy.Ct.W.D.Mo. 1979). The Sutherland court held the debt- or could pay something to some unsecured creditors for medical and trade debts and nothing to other unsecured creditors because under the liquidation test of 11 U.S.C. § 1325(a)(4) unsecured creditors would receive nothing under Chapter 7, and consequently, there was no unfair discrimination. In Curtis the court held that a 100% payment on child support arrearage and 10% to other unsecured creditors was “fair” because child support was a nondischargeable debt. Collier also supports the proposition that payment of different percentages to unsecured creditors is not necessarily unfair discrimination: “No class of claims may be unfairly discriminated against. It remains to be seen how the courts will construe the prohibition against unfair discrimination. A chapter 13 plan proposing to pay less to the holder of any unsecured claim than would be received in the event of liquidation may not be confirmed. Unfair discrimination against a class of claims would therefore seem to have reference either to the order of distribution or the percentage to" }, { "docid": "10180216", "title": "", "text": "it fails to address the critical discrimination issue. Consequently, the analysis in Sutherland is not adopted here. The second approach, more in tune with the Code and its legislative history, recognizes that discrimination between creditors is proper in limited circumstances. Discrimination between classes is permitted when its purpose is rationally based or reasonable. In Re Haag, 3 B.R. 649, 2 C.B.C.2d 144 (Bkrtcy., D.Or.1980); Kovich, supra at 107; This necessitates a case by case analysis and rejects adoption of a blanket rule as proposed in some decisions, Iacovoni, supra; Sutherland, supra. Under the rational basis approach, the comparative benefit to a discriminated creditor under Chapter 13 as opposed to Chapter 7 is only one of many factors to be considered. Kovich, supra at 207. Other questions include: What is the reason for the classification? Is the classification essential to the plan? Has the debt- or proposed the classification in good faith? Is the payment to the class meaningful? Is the proposed classification important to the debtor’s “fresh start”? In the case at bar, the plan discriminates between two de facto classes. Although Carte Blanche and Preston State Bank are to be paid outside of the plan and hence are not classified by the plan, they nevertheless receive identical favorable treatment to the discrimination of the unsecured creditors in the plan. The question then becomes whether such discrimination is unfair. Debtor’s business is that of a traveling salesman. In his business he must pay his way to reach the customer to whom he makes his sales. Mobility is crucial to earning his commission. In this case, the debt- or’s employer reimburses him for the expenses he incurs while on the road making sales. To that end the two credit cards are of substantial benefit. The credit cards’ receipts provide the precise documentation which will serve as proof for expense reimbursement to debtor’s employer. The credit cards provide a medium of exchange which the financially strapped debtor might otherwise not have. If the debtor was to rely solely on available cash in order to conduct his business, his finely tuned plan would" } ]

[ { "docid": "16890895", "title": "", "text": "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child; and (5) the defendant must be at least ten years older than the child. Our case law recognizes two different generic federal definitions of “sexual abuse of a minor.” Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013 (9th Cir.2009). The first generic definition contains three elements: (1) sexual conduct; (2) with a minor; (3) that constitutes abuse. United States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009). We define the first two elements— (1) sexual conduct; (2) with a minor — by “ ‘employing the ordinary, contemporary, and common meaning of the words that Congress used.’ ” United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999) (quoting Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir.1999)). A statute of conviction contains the third element, “abuse,” if it expressly prohibits conduct that causes “ ‘physical or psychological harm’ in light of the age of the victim in question.” Medina-Villa, 567 F.3d at 513. Sexual conduct with younger children is per se abusive. Id. at 514-15. Because “[t]he conduct reached by Section 288(a) indisputably falls with the common, everyday meanings of the words ‘sexual’ and ‘minor,’ ” Baron-Medina, 187 F.3d at 1147, and because it applies only to sexual conduct with younger children, we have previously held that a conviction under section 288(a) categorically constitutes “sexual abuse of a minor” for purposes of sentencing enhancement. See id.; Medina-Villa, 567 F.3d at 516. Section 288(c)(1), however, is categorically broader than this first generic definition. Although it contains two elements of the generic crime — (1) sexual conduct; (2) with a minor — it is broader than the generic crime because it criminalizes conduct that does not necessarily constitute abuse. Section 288(c)(1) does not expressly include physical or psychological abuse as an element of the crime. Moreover, unlike section 288(a), which applies only where the minor is younger than 14, section 288(c)(1) does not address conduct that is per se abusive. See Pelayo-Garcia, 589 F.3d at 1015-16(concluding that sexual" } ]

[ { "docid": "4313051", "title": "", "text": "(9th Cir.2008). Estrada-Espinoza held that, for purposes of determining whether an alien’s state conviction qualifies as “sexual abuse of a minor,” we should apply the definition of “sexual abuse of a minor” from § 2243(a). Id. at 1152-53. Although we did not overturn any of our prior cases, we failed to note that our holding was in conflict with a whole line of cases dating back to our original decision in 1999 in Baron-Medina, 187 F.3d at 1147. See also Lopez-Solis, 447 F.3d at 1206-07. We have since struggled to reconcile Estrada-Espinoza with the Baron-Medina line of cases. In Medina-Villa, we attempted to reconcile our conflicting precedents by limiting the applicability of Estrada-Espinoza to statutory rape statutes only, while reaffirming the use of the Baron-Medina approach for all other state statutes criminalizing conduct understood to be “sexual abuse of a minor.” United States v. Medina-Villa, 567 F.3d 507, 514-16. Then, in Pelayo-Garcia, we again attempted to reconcile Estrada-Espinoza and Medina-Villa by arguing that we were bound by both definitions of the term. Pelayo-Garcia, 589 F.3d at 1013-16. As a consequence, if a state statute satisfies the definition of “sexual abuse of a minor” under either the Baron-Medina approach or Estrada-Espinoza approach, a violation of that statute would trigger removal or a mandatory minimum sentence. Most recently, we reaffirmed the Pelayo-Garcia approach in United States v. Castro, 607 F.3d 566 (9th Cir.2010), and United States v. Valencia-Barragan, 608 F.3d 1103 (9th Cir.2010). The result of our attempts to reconcile our precedents in this area has yielded a most awkward arrangement in which we have two definitions of the generic offense of “sexual abuse of a minor.” While this approach, first adopted in Pelayo-Garcia, might recommend itself because it did not require us to overrule any precedents, it burdens litigants with a needlessly confusing rule of law that has no compelling or principled rationale. To illustrate, the definition of “sexual abuse of a minor” under the Estradctr-Espinoza approach, which is based on the statutory definition in § 2243(a), differs from the “ordinary, common, contemporary” definition of the term used in the Baron-Medina" }, { "docid": "22724754", "title": "", "text": "of sixteen levels “[i]f the defendant previously was deported ... after ... a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii). “Crime of violence” includes, inter alia, “sexual abuse of a minor” and “statutory rape.” Id. at cmt. n.l(B)(iii). On de novo review, United States v. Medina-Villa, 567 F.3d 507, 511 (9th Cir.2009), we conclude that a conviction under section 9A.44.076(1) categorically constitutes sexual abuse of a minor, and that the sixteen-level increase therefore applies. Section 9A.44.076(1) provides that “[a] person is guilty of rape of a child in the second degree when the person has sexual intercourse with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.” Wash. Rev.Code § 9A.44.076(1). To determine whether a prior conviction under section 9A.44.076(1) constitutes either “sexual abuse of a minor” or “statutory rape” for purposes of sentencing enhancement, we apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). “Under the categorical approach, we ‘compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.’ ” Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008) (quoting Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.2007)). “We do not examine the facts underlying the offense, but ‘look only to the fact of conviction and the statutory definition of the prior offense.’ ” Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir.2008) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). Our case law recognizes two different generic federal definitions of “sexual abuse of a minor.” Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013 (9th Cir.2009). The first generic definition contains three elements: (1) sexual conduct; (2) with a minor; (3) that constitutes abuse. Medina-Villa, 567 F.3d at 513. We define the first two elements — (1) sexual conduct; (2) with a minor" }, { "docid": "3211282", "title": "", "text": "McKEOWN, Circuit Judge: We consider here whether Arizona Revised Statutes § 13-1405, which criminalizes sexual conduct with a minor under eighteen years of age, constitutes an aggravated felony for the purposes of immigration law. Because § 13-1405 does not meet the federal generic offense of “sexual abuse of a minor,” we hold that it is not an aggravated felony and grant the petition for review. Jose Ignacio Rivera-Cuartas, a longtime lawful permanent resident from Colombia, was convicted under § 13-1405 for performing oral sex on a sixteen-year-old boy and sentenced to three years probation. In removal proceedings, the immigration judge (“U”) found Rivera deportable for having been convicted of the aggravated felony of “sexual abuse of a minor” as defined at 8 U.S.C. § 1101(a)(43)(A). The Board of Immigration Appeals (“BIA”) affirmed. This case is squarely controlled by two recent decisions that address the generic definition of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A): Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), and United States v. Medina-Villa, 567 F.3d 507 (9th Cir.2009). See also Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013-14 (9th Cir.2009) (reviewing cases). Both cases were decided after briefing was completed in this case. Nonetheless, the application of the framework is straightforward. In Estradar-Espinoza, we explained that, for the purposes of § 1101(a)(43)(A), “Congress has enumerated the elements of the offense of ‘sexual abuse of a minor’ at 18 U.S.C. § 2243.” 546 F.3d at 1152. A statute of conviction qualifies as the generic offense of “sexual abuse of a minor” if it includes the following elements: (1) a mens rea of knowingly engaging in; (2) a sexual act (3) with a minor who is at least twelve but not yet sixteen years of age; and (4) an age difference of at least four years between the defendant and the minor. Id. at 1152, 1158 (citing 18 U.S.C. § 2243). In Medina-Villa, we distinguished Estradar-Espinoza on the ground that 18 U.S.C. § 2243 “encompassed statutory rape crimes only” and therefore was not the only federal generic definition of “sexual abuse of a minor.”" }, { "docid": "3211283", "title": "", "text": "(9th Cir.2009). See also Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013-14 (9th Cir.2009) (reviewing cases). Both cases were decided after briefing was completed in this case. Nonetheless, the application of the framework is straightforward. In Estradar-Espinoza, we explained that, for the purposes of § 1101(a)(43)(A), “Congress has enumerated the elements of the offense of ‘sexual abuse of a minor’ at 18 U.S.C. § 2243.” 546 F.3d at 1152. A statute of conviction qualifies as the generic offense of “sexual abuse of a minor” if it includes the following elements: (1) a mens rea of knowingly engaging in; (2) a sexual act (3) with a minor who is at least twelve but not yet sixteen years of age; and (4) an age difference of at least four years between the defendant and the minor. Id. at 1152, 1158 (citing 18 U.S.C. § 2243). In Medina-Villa, we distinguished Estradar-Espinoza on the ground that 18 U.S.C. § 2243 “encompassed statutory rape crimes only” and therefore was not the only federal generic definition of “sexual abuse of a minor.” 567 F.3d at 514-15. Statutory rape crimes are “sexual offenses involving older as well as younger adolescents, not crimes prohibiting conduct harmful to younger children specifically.” Id. at 514. Under Medina-Villa, a crime that is not a statutory rape crime under Estradar-E spinoza may still meet the federal generic offense of “sexual abuse of a minor” if: (1) the conduct prohibited by the criminal statute is sexual, (2) the statute protects a minor, and (3) the statute requires abuse. Id. at 513. A criminal statute includes the element of “abuse” if it expressly prohibits conduct that causes “physical or psychological harm in light of the age of the victim in question.” Id. (internal quotation marks omitted). The statute, § 13-1405, does not meet the generic definition of “sexual abuse of a minor” under either framework. Section 13-1405 provides that “[a] person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.” Ariz. Rev. Stat. § 13-1405(A). On" }, { "docid": "16890894", "title": "", "text": "of the prior offense.’ ” Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir.2008) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). The statute of conviction, California Penal Code section 288(c)(1), criminalizes the conduct of “[a]ny person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child.” CaLPenal Code § 288(c)(1). Section 288(a), in turn, applies to “[a]ny person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.” Id. § 288(a). Section 288(c)(1) therefore contains the following five elements: (1) willfully and lewdly; (2) committing any lewd or lascivious act; (3) on a child ages 14 or 15; (4) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child; and (5) the defendant must be at least ten years older than the child. Our case law recognizes two different generic federal definitions of “sexual abuse of a minor.” Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013 (9th Cir.2009). The first generic definition contains three elements: (1) sexual conduct; (2) with a minor; (3) that constitutes abuse. United States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009). We define the first two elements— (1) sexual conduct; (2) with a minor — by “ ‘employing the ordinary, contemporary, and common meaning of the words that Congress used.’ ” United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999) (quoting Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir.1999)). A statute of conviction contains the third element, “abuse,” if it expressly prohibits conduct that causes “ ‘physical or psychological harm’ in light of the age of the victim in question.” Medina-Villa, 567 F.3d" }, { "docid": "23351422", "title": "", "text": "Estrada-Espinoza stated that “we acknowledged [in Valencia v. Gonzales, 439 F.3d 1046 (9th Cir.2006)] a significant difference between sexual relations with someone under 16 and sexual relations with someone between the ages of 16 and 18,” to support its determination that sexual conduct with older minors is not necessarily abusive. Estrada-Espinoza, 546 F.3d at 1154-55; see Valencia, 439 F.3d at 1053 (holding that a state statute proscribing sexual conduct with a minor who could be one day shy of 18 was not categorically a crime of violence). Medina-Villa then used the same quotation to support the complementary insight: that sexual relations with younger children are significantly different than sexual relations with teenagers. 567 F.3d at 514. But neither Medinar-Villa nor Estrada-Espinoza enunciated a rule that sexual conduct with a minor a day shy of 16 is per se abusive, and indeed such a holding would be contrary to the conclusion in Medina-Villa that the conduct criminalized by § 2243 includes non-abusive conduct. See id. Because section 261.5(d) does not include the relevant scienter requirement of § 2243, and criminalizes sexual conduct that is not necessarily abusive, we conclude that section 261.5(d) does not qualify as the generic federal crime of “sexual abuse of a minor,” and therefore is not categorically an aggravated felony under § 1101(a)(43)(A). If the specific crime of conviction “does not categorically qualify as a predicate offense under a federal statute, it still may qualify under a modified categorical analysis.” Quintero-Salazar, 506 F.3d at 694. Under the modified categorical approach, we examine specified judicial records to determine whether a defendant was necessarily convicted of the elements of the federal generic crime. See Shepard v. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Here, the government has not asked this court to undertake a modified categorical analysis, nor could it do so, given that the record contains only two documents of conviction (a felony complaint and the clerk’s order of probation) neither of which indicates the age of the victim or establishes that Pelayo was convicted of a crime involving sexual conduct with" }, { "docid": "22724755", "title": "", "text": "United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). “Under the categorical approach, we ‘compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.’ ” Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008) (quoting Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.2007)). “We do not examine the facts underlying the offense, but ‘look only to the fact of conviction and the statutory definition of the prior offense.’ ” Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir.2008) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). Our case law recognizes two different generic federal definitions of “sexual abuse of a minor.” Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013 (9th Cir.2009). The first generic definition contains three elements: (1) sexual conduct; (2) with a minor; (3) that constitutes abuse. Medina-Villa, 567 F.3d at 513. We define the first two elements — (1) sexual conduct; (2) with a minor — by “employing the ordinary, contemporary, and common meaning of the words that Congress used.” United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999) (quoting Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir.1999) (internal quotation marks omitted)). We define the third element — abuse—as “ ‘physical or psychological harm’ in light of the age of the victim in question.” Medina-Villa, 567 F.3d at 513. Sexual conduct with younger children is per se abusive. Id. at 514-15. The second generic definition, derived from 18 U.S.C. § 2243 and set out in Estrada-Espinoza v. Mukasey, contains four elements: “(1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.” 546 F.3d at 1152. We conclude that a conviction under section 9A.44.076(1) categorically constitutes sexual abuse of a minor under the first generic definition. Section 9A.44.076(1) contains the first two elements of the generic crime because" }, { "docid": "4313050", "title": "", "text": "the Seventh Circuit’s by adopting a common law definition of the term for the INA, and a statutory definition for § 2252A. For now, however, we remain bound by Sinerius. 504 F.3d 737. See United States v. Strickland, 601 F.3d 963, 967 (9th Cir.2010) (en banc) (relying on Sinerius in affirming defendant’s enhanced sentence pursuant to § 2252A(b)). II My second problem with our approach to this area of the law concerns how our caselaw now recognizes two competing definitions of “sexual abuse of a minor.” At the time Sinerius borrowed the definition of “sexual abuse of a minor” from our immigration caselaw and incorporated it into § 2252A, our immigration cases provided for only one approach for defining the offense — in accordance with the “ordinary, contemporary, and common meaning” of the term. Sinerius, 504 F.3d at 740 (adopting a definition first set out in Baron-Medina, 187 F.3d at 1146). Our immigration caselaw in this area was subsequently thrown into disarray, however, by our en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008). Estrada-Espinoza held that, for purposes of determining whether an alien’s state conviction qualifies as “sexual abuse of a minor,” we should apply the definition of “sexual abuse of a minor” from § 2243(a). Id. at 1152-53. Although we did not overturn any of our prior cases, we failed to note that our holding was in conflict with a whole line of cases dating back to our original decision in 1999 in Baron-Medina, 187 F.3d at 1147. See also Lopez-Solis, 447 F.3d at 1206-07. We have since struggled to reconcile Estrada-Espinoza with the Baron-Medina line of cases. In Medina-Villa, we attempted to reconcile our conflicting precedents by limiting the applicability of Estrada-Espinoza to statutory rape statutes only, while reaffirming the use of the Baron-Medina approach for all other state statutes criminalizing conduct understood to be “sexual abuse of a minor.” United States v. Medina-Villa, 567 F.3d 507, 514-16. Then, in Pelayo-Garcia, we again attempted to reconcile Estrada-Espinoza and Medina-Villa by arguing that we were bound by both definitions of the term. Pelayo-Garcia, 589 F.3d" }, { "docid": "3475935", "title": "", "text": "13-1405 B defines the victim as being either \"at least fifteen” or \"under fifteen.” Consequently, it is divisible with respect to the age of the victim, and, under the governing law in 2006, we may consider the indictment and plea agreement’s clear language showing that Gomez was charged with sexual conduct with \"a minor under the age of fifteen.” See Shepard v. United States, 544 U.S. 13, 16, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (holding that a court determining the character of an underlying crime using the modified categorical approach may consider, inter alia, the \"charging document” and \"written plea agreement”); see also Descamps, 133 S.Ct. at 2283-85 (describing that Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) permitted courts to review a limited group of documents when the statute of conviction is \" ‘divisible’ — i.e., comprises multiple, alternative versions of the crime”). Gomez’s indictment and judgment allege that he was convicted of the “under fifteen” version of § 13-140 5B. .We also “pointed out that Congress did not cross-reference any federal substantive offense in listing 'sexual abuse of a minor’ as an aggravated felony,” and therefore did not limit the term to a single federal definition. Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1065 (9th Cir.2003). . We note that the analysis for defining substantive offenses enumerated in § 1101(a)(43) — such as \"rape” or \"sexual abuse of a minor” — “is the same for a 'crime of violence’ in the sentencing context, U.S.S.G. § 2L1.2.” United States v. Valencia-Barragan, 608 F.3d 1103, 1107 n. 1 (9th Cir. 2010) (citing Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013 n. 1 (9th Cir.2009), and United States v. Medina-Villa, 567 F.3d 507, 511-12 (9th Cir.2009)); see also United States v. Medina-Maella, 351 F.3d 944, 947 (9th Cir. 2003) (relying in the context of criminal sentencing upon cases defining \"sexual abuse of a minor” in 8 U.S.C. § 1101(a)(43)(A)). Therefore, the analysis in sentencing cases such as Pereira-Salmeron is directly applicable to our analysis here. . We have said that Estrada-Espinoza, which was not" }, { "docid": "23351414", "title": "", "text": "did not knowingly engage in a sexual act. Accordingly, under Estrada-Espinoza, 546 F.3d at 1152, a statute of conviction qualifies as the generic offense of “sexual abuse of a minor” if it includes the following elements: (1) a mens rea of “knowingly” (as to engaging in the act); (2) a sexual act (3) with a minor who is at least 12 but not yet 16 years of age; and (4) an age difference of at least four years between the defendant and the minor. Medina-Villa subsequently distinguished Estradar-Espinoza on the ground that § 2243 “encompassed statutory rape crimes only,” and therefore was not the only federal generic definition of “sexual abuse of a minor.” 567 F.3d at 515; see also id. at 515 (“§ 2243 was intended by Estradar-Espinoza to define only statutory rape crimes.”). Statutory rape crimes are “sexual offenses involving older as well as younger adolescents, not crimes prohibiting conduct harmful to younger children specifically[.]” Id. This category of sexual offenses does not include “physical or psychological harm” to a child. Id. at 513-14. Under Medinar-Villa, a crime may also qualify as the federal generic offense of “sexual abuse of a minor” if it meets the definition set forth in United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir.1999) and other cases preceding Estrada-Espinoza. See Medina-Villa, 567 F.3d at 515 (“[g]iven that our holding [in Estrada-Espinoza ] was intended to define statutory rape laws only, Estradar-E spino-za in no way undermines our prior conclusion that ‘[t]he use of young children for the gratification of sexual desires constitutes abuse.’ ”). Specifically, a crime that is not a statutory rape crime under Estra-dar-Espinoza may qualify as the federal generic offense of “sexual abuse of a minor” if: (1) the conduct prohibited by the criminal statute is sexual, (2) the statute protects a minor, and (3) the statute requires abuse. Id. at 513 (internal quotation omitted). A criminal statute includes the element of “abuse” if it expressly prohibits conduct that causes “physical or psychological harm in light of the age of the victim in question.” Id. at 513. Sexual conduct" }, { "docid": "3475912", "title": "", "text": "a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.” Estrada-Espinoza, 546 F.3d at 1152, 1156; see also 18 U.S.C. § 2243. We have recognized that the definition of “sexual abuse of a minor” set forth in Estrada-Espinoza applies equally to U.S.S.G. § 2L1.2. See Valencia-Barragan, 608 F.3d at 1105, 1107 (applying Estradar-Espinoza’s definition of “sexual abuse of a minor” in the sentencing context); Medinar-Villa, 567 F.3d at 511 (reaffirming that the “decisional law defining the term ‘sexual abuse of a minor’ in the sentencing context, U.S.S.G. § 2L1.2, is informed by the definition of the same term in the immigration context, 8 U.S.C. § 1101(a)(43)(A), and vice versa” (footnote omitted)); supra note 15. Second, in Medina-Villa, we held that Estrada-E spinoza did not set forth the exclusive definition of “sexual abuse of a minor.” 567 F.3d at 516. We noted that Estrada-E spiTioza’s definition of “sexual abuse of a minor” “encompassed statutory rape crimes only,” and recognized that a residual category of “sexual abuse of a minor” exists that encompasses statutes where (1) “the conduct proscribed ... is sexual;” (2) “the statute protects a minor;” and (3) “the statute requires abuse.” Id. at 513-14. In turn, we defined the term “abuse” as “physical or psychological harm in light of the age of the victim in question.” Id. (internal quotation marks omitted). We have noted that sexual contact with a victim under the age of fourteen is categorically “abuse,” see United States v. Lopez-Solis, 447 F.3d 1201, 1209 (9th Cir. 2006), but we have never held that such a per se rule applies to consensual sex with persons fourteen and older, see Valencia-Barragan, 608 F.3d at 1107 & n. 2 (recognizing the two distinct generic definitions of “sexual abuse of a minor” and holding that a statute contains the element of abuse under the Medina-Villa definition if it “applies to sexual conduct with children younger than fourteen years”); Pelayo-Garcia, 589 F.3d at 1015-16 (rejecting argument that a statute that criminalizes" }, { "docid": "23351411", "title": "", "text": "IJ’s decision as if it were the decision of the BIA. Id. at 491. We review legal questions addressed by the IJ de novo. Id. Ill Pelayo argues that his conviction for the offense of unlawful sexual intercourse in violation of California Penal Code section 261.5(d) is not a conviction for “sexual abuse of a minor,” and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). We analyze this issue using the categorical and modified categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) and Shepard v. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). See Renteria-Morales v. Mukasey, 551 F.3d 1076, 1081-82 (9th Cir.2008). “Under the categorical approach, we ‘compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.’ ” Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008) (quoting Quintero-Salazar v. Keis- ler, 506 F.3d 688, 692 (9th Cir.2007)). Here, we must first identify the elements of the generic federal crime of “sexual abuse of a minor” under § 1101(a)(43)(A). See id. We have set out two different generic federal definitions of “sexual abuse of a minor.” See United States v. Medina-Villa, 567 F.3d 507, 514 (9th Cir.2009); Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir.2008) (en banc). First, in Estrada-Espinoza, we explained that for purposes of § 1101(a)(43)(A), “Congress has enumerated the elements of the offense of ‘sexual abuse of a minor’ at 18 U.S.C. § 2243.” 546 F.3d at 1152. Section 2243 states, in pertinent part: Whoever ... knowingly engages in a sexual act with another person who— (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. 18 U.S.C. § 2243(a). The mens rea of “knowingly” in" }, { "docid": "22724756", "title": "", "text": "— by “employing the ordinary, contemporary, and common meaning of the words that Congress used.” United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999) (quoting Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir.1999) (internal quotation marks omitted)). We define the third element — abuse—as “ ‘physical or psychological harm’ in light of the age of the victim in question.” Medina-Villa, 567 F.3d at 513. Sexual conduct with younger children is per se abusive. Id. at 514-15. The second generic definition, derived from 18 U.S.C. § 2243 and set out in Estrada-Espinoza v. Mukasey, contains four elements: “(1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.” 546 F.3d at 1152. We conclude that a conviction under section 9A.44.076(1) categorically constitutes sexual abuse of a minor under the first generic definition. Section 9A.44.076(1) contains the first two elements of the generic crime because it prohibits (1) sexual conduct (2) with a minor. It contains the final element, abuse, because it applies to sexual conduct with children younger than fourteen years, and therefore prohibits conduct that is per se abusive. See, e.g., Baron-Medina, 187 F.3d at 1147 (concluding that the use of children under fourteen for the gratification of sexual desire necessarily constitutes abuse). Because we conclude that Valencia-Barragan’s conviction under section 9A.44.076(1) criminalizes conduct that satisfies the first federal generic definition of “sexual abuse of a minor,” we do not address whether his conviction also satisfies the second generic federal definition or whether it constitutes “statutory rape.” Valencia-Barragan’s prior conviction constitutes a crime of violence and the district court did not err in imposing a sixteen-level increase under U.S.S.G. § 2L1.2(b)(1)(A). B. Procedural and Substantive Reasonableness Valencia-Barragan also contends that the district court failed to adequately address and apply the sentencing factors listed in 18 U.S.C. § 3553(a) (“the § 3553(a) factors”) and imposed a substantively unreasonable sentence. We review sentencing decisions for abuse of discretion. United States" }, { "docid": "5509602", "title": "", "text": "who is “a day shy of 16,” it is not necessarily abusive. Pelayo-Garcia v. Holder, 589 F.3d 1010, 1015-16 (9th Cir.2009); see also United States v. Medina-Villa, 567 F.3d 507, 514 (9th Cir.2009). The same reasoning would apply to section 288a. Further, the offenses described in section 261.5(d) and section 288a(b)(2) are not equivalent to the federal generic offense of sexual abuse of a minor described in Estradar-E spinoza because one element of that offense requires the government to prove that the defendant engaged in the sexual act “knowingly,” Pelayo-Garcia, 589 F.3d at 1013, and neither California statute includes this mens rea requirement. Therefore, the state offenses are not a categorical match to the federal generic definitions we have adopted for sexual abuse. But for purposes of § 2251(e) and § 2252(b)(2), a state crime need not be equivalent to a generic federal offense; it is necessary only that it “stands in some relation, bears upon, or is associated with [the] generic offense.” Sinerius, 504 F.3d at 743. A state criminal statute that does not categorically involve “sexual abuse” may nevertheless qualify as one of the federal generic offenses defined in those statutes because it “stands in some relation, bears upon, or is associated with [sexual abuse].” See Farmer, 627 F.3d at 419 n. 3 (quoting Sinerius, 504 F.3d at 743) (noting this possibility). Other circuits agree that this type of enhancement “does not require that the predicate conviction amount to ‘sexual abuse’ or ‘abusive sexual conduct involving a minor.’ ” United States v. Colson, 683 F.3d 507, 511 (4th Cir.2012) (considering 18 U.S.C. § 2252A(b)(1)). Rather, “Congress’s use of [the ‘relating to’] phrase in § 2252(b)(2) indicates its intent to allow a sentencing court to look beyond the mere elements of a prior state conviction in determining whether such conviction is sufficient to trigger application of the sentence enhancement provisions.” United States v. McCutchen, 419 F.3d 1122, 1127 (10th Cir.2005). Here, the state crimes described in section 261.5(d) and section 288a(b)(2) relate to the generic offense “sexual abuse of a minor” as defined in Estrada-Espinoza. Although the state offenses" }, { "docid": "23351423", "title": "", "text": "§ 2243, and criminalizes sexual conduct that is not necessarily abusive, we conclude that section 261.5(d) does not qualify as the generic federal crime of “sexual abuse of a minor,” and therefore is not categorically an aggravated felony under § 1101(a)(43)(A). If the specific crime of conviction “does not categorically qualify as a predicate offense under a federal statute, it still may qualify under a modified categorical analysis.” Quintero-Salazar, 506 F.3d at 694. Under the modified categorical approach, we examine specified judicial records to determine whether a defendant was necessarily convicted of the elements of the federal generic crime. See Shepard v. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Here, the government has not asked this court to undertake a modified categorical analysis, nor could it do so, given that the record contains only two documents of conviction (a felony complaint and the clerk’s order of probation) neither of which indicates the age of the victim or establishes that Pelayo was convicted of a crime involving sexual conduct with a younger child. See generally id. at 26, 125 S.Ct. 1254 (holding that we are permitted to conduct a limited examination of documents in the record of conviction, specifically “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information”). IV Because Pelayo’s conviction for unlawful sexual intercourse in violation of section 261.5(d) of the California Penal Code does not qualify as the federal generic crime of “sexual abuse of a minor,” it is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Therefore, the IJ and BIA erred in concluding that Pelayo was deportable due to his prior conviction. PETITION FOR REVIEW GRANTED. . Although Medina-Villa considered the definition of \"sexual abuse of a minor” in the context of criminal sentencing, \"decisional law defining the term ‘sexual abuse of a mi nor' in the sentencing context ... is informed by the definition of" }, { "docid": "4313044", "title": "", "text": "348-49 (5th Cir.2007), the Seventh Circuit recently concluded the opposite, see United States v. Osborne, 551 F.3d 718, 720 (7th Cir.2009) (explaining that \"these laws [§ 2252A and §§ 2241, 2242, and 2243] should be read together\" because they use \"the same three terms” — aggravated sexual abuse, sexual abuse, and abusive sexual conduct involving a minor or ward — and were revised and enacted together in 1990). . Section 2243 contains the elements of a federal crime labeled \"sexual abuse of a minor or ward.” BYBEE, Circuit Judge, with whom Judge NOONAN joins, specially concurring: Our precedents in United States v. Sinerius, 504 F.3d 737 (9th Cir.2007), and Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir.2009), compel us to affirm Farmer’s sentence. I write separately to express my concerns with our current approach to defining “abusive sexual conduct involving a minor” for purposes of determining whether to apply a sentencing enhancement to violators of the federal child pornography statute, 18 U.S.C. § 2252A. My concerns are twofold. First, in defining “abusive sexual conduct involving a minor,” we have adopted uncritically the definition of “sexual abuse of a minor” we had used to interpret an unrelated immigration statute, without regard for the distinctive structure of § 2252A. See Sinerius, 504 F.3d at 742-43. Second, our recent attempts to distinguish the array of contradictory cases in this area of law has yielded the awkward result that we now apply two competing, but equally recognized, definitions of “sexual abuse of a minor.” See Pelayo-Garcia, 589 F.3d at 1012-15. I discuss each of these concerns in turn. I We first held in Sinerius that, for purposes of determining whether to apply an enhanced sentence to violators of § 2252A, the term “abusive sexual conduct involving a minor” should be interpreted according to the “ordinary, contemporary, and common meaning of the ... words.” Sinerius, 504 F.3d at 740 (quoting United States v. Lopez-Solis, 447 F.3d 1201, 1206-07 (9th Cir.2006), and United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999)). In doing so, the Sinerius panel incorporated into § 2252A the definition of “sexual" }, { "docid": "22289977", "title": "", "text": "“statutory rape” definition, and prior case law (and frequently distinguished between sexual activity with younger children and sexual activity with older adolescents). Id. at 1153-55. In explaining why there was no need for the aggravated felony provision to include an express statutory reference to § 2243, we specifically observed that “sexual abuse of a minor” offenses under federal and state law “define what would, in more common parlance, be referred to as statutory rape.” Id. at 1156; see also, e.g., Aguila-Montes, 655 F.3d at 925 (“We defined ‘sexual abuse of a minor’ by reference to the federal statutory rape statute, 18 U.S.C. § 2243, and held that this definition contains ‘four elements: (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.’ ” (quoting Estradar-Espinoza, 546 F.3d at 1152)). Even outside of the narrow “statutory rape” context, subsequent panel rulings have proceeded to distinguish this en banc opinion. In the process, we have recognized that there are now two generic federal definitions of “sexual abuse of a minor” in this Circuit: (1) the so-called “statutory rape crimes only” definition announced by the en banc Court in EstradarEspinoza and understood as covering offenses involving both older adolescents and younger children; and (2) the preexisting definition dealing with sexual crimes against younger children, which are considered to be per se abusive. See United States v. Farmer, 627 F.3d 416, 417-22 (9th Cir.2010), pet. for cert. filed, (Mar. 17, 2011) (No. 10-9620); Valencia-Barragan, 608 F.3d at 1106-08; United States v. Castro, 607 F.3d 566, 567-70 (9th Cir.2010); Rivera-Cuartas v. Holder, 605 F.3d 699, 701-02 (9th Cir.2010); Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012-16 (9th Cir.2009); United States v. Medina-Villa, 567 F.3d 507, 511-16 (9th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 1545, 176 L.Ed.2d 138 (2010). For example, we determined in Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir.2010), that the Arizona statutory provision at issue here does not satisfy either of these “sexual" }, { "docid": "22289978", "title": "", "text": "opinion. In the process, we have recognized that there are now two generic federal definitions of “sexual abuse of a minor” in this Circuit: (1) the so-called “statutory rape crimes only” definition announced by the en banc Court in EstradarEspinoza and understood as covering offenses involving both older adolescents and younger children; and (2) the preexisting definition dealing with sexual crimes against younger children, which are considered to be per se abusive. See United States v. Farmer, 627 F.3d 416, 417-22 (9th Cir.2010), pet. for cert. filed, (Mar. 17, 2011) (No. 10-9620); Valencia-Barragan, 608 F.3d at 1106-08; United States v. Castro, 607 F.3d 566, 567-70 (9th Cir.2010); Rivera-Cuartas v. Holder, 605 F.3d 699, 701-02 (9th Cir.2010); Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012-16 (9th Cir.2009); United States v. Medina-Villa, 567 F.3d 507, 511-16 (9th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 1545, 176 L.Ed.2d 138 (2010). For example, we determined in Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir.2010), that the Arizona statutory provision at issue here does not satisfy either of these “sexual abuse of a minor” definitions, id. at 702. In this immigration proceeding, we held that “section 13-1405 does not meet the definition for statutory rape crimes set forth in Estrada-Espinoza for two reasons: (1) it lacks the age difference requirement; and (2) is broader than the generic offense with respect to the age of the minor because the statute applies to persons under eighteen years of age.” Id. On the other hand, “a crime that is not a statutory rape crime under Estradas-Espinoza may still meet the federal generic offense of ‘sexual abuse of a minor’ if (1) the conduct prohibited by the criminal statute is sexual, (2) the statute protects a minor, and (3) the statute requires abuse.” Id. (citing Medina-Villa, 567 F.3d at 513). The abuse element is met if the statute prohibits behavior that causes “ ‘physical or psychological harm in light of the age of the victim in question.’ ” Id. (quoting same). Applying this other definition, we held that section 13-1405 lacks the critical “abuse” element. Id. However, the Riv-eras-Cuartas" }, { "docid": "23351420", "title": "", "text": "involved in the offense; this is not the same as proving (under § 2243) that the defendant knowingly engaged in the act of sexual intercourse. Therefore, section 261.5(d) does not require proof of the scienter element in § 2243. We next turn to Medina-Villa, and compare the elements of section 261.5(d) with the elements of the federal generic crime of “sexual abuse of a minor” as defined in that case. Section 261.5(d) contains two of the elements identified in Medina-Villa, in that it (1) prohibits sexual intercourse with (2) a minor. But section 261.5(d) criminalizes a broader range of conduct than the crime delineated in Medina-Villa because a defendant could be convicted under section 261.5(d) even if the government failed to prove beyond a reasonable doubt that the defendant’s conduct constituted “abuse.” Section 261.5(d) does not expressly include physical or psychological abuse of a minor as an element of the crime. Nor can we hold that section 261.5(d) criminalizes only conduct that is per se abusive, because it is not limited to conduct targeting younger children. See Medina-Villa, 567 F.3d at 514 (holding that § 2243, which prohibits sexual conduct with minors who are not yet 16, criminalizes conduct that is not necessarily abusive); see also United States v. Baza-Martinez, 464 F.3d 1010, 1012 (9th Cir.2006) (holding that a statute criminalizing sexual conduct with a minor under sixteen “prohibits conduct that is not necessarily physically or psychologically harmful, and therefore, is not necessarily ‘abuse.’ ”), cited with approval by Medina-Villa, 567 F.3d at 513. Accordingly, we conclude that section 261.5(d) is not categorically “sexual abuse of a minor” as defined in Medina-Villa. Relying on Medina-Villa’s statement that there is “a significant difference” between a victim “under 16” and a victim “between the ages of 16 and 18,” 567 F.3d at 514 (quoting Estrada-Espinoza, 546 F.3d at 1154), the government argues that section 261.5(d) does meet the definition of sexual abuse of a minor in Medina-Villa because it applies to minors under the age of 16. When the quoted language is read in context, however, it does not assist the government." }, { "docid": "4313039", "title": "", "text": "Estrada-Espinoza ] that [18 U.S.C.] § 2243 defines the universe of sexual offenses contemplated by U.S.S.G. § 2L1.2’s term ‘sexual abuse of a minor.’ ” Medina-Villa, 567 F.3d at 515-16. Although we recognized that Estrada-Espinoza ’s definition served an important purpose, we held that Estrada-Espinoza had not eliminated the alternative definition of “sexual abuse of a minor” established in pre Estrada-E spinoza cases. Id. Under that pre-Estradar-Espinoza definition, we explained that “sexual abuse of a minor” contains “three elements: [1] whether the conduct proscribed by the statute is sexual; [2] whether the statute protects a minor; and [3] whether the statute requires abuse.” Id. at 513. We also rejected Farmer’s reading of Estrada-Espinoza and elaborated on Medina-Villa’s interpretation of “sexual abuse of a minor” in Pelayo-Garcia. There, we made clear that the definitions of “sexual abuse of a minor” laid out in Estrada-Espinoza and Medina-Villa are complementary, not inconsistent. As we explained, there are “two different generic federal definitions of ‘sexual abuse of a minor.’ ” Pelayo-Garcia, 589 F.3d at 1013. The first derives from 18 U.S.C. § 2243 and the definition set forth in Estradar-E spinoza. The second is based on the “ordinary, contemporary, and common meaning” of “sexual abuse of a minor,” as set forth in Baron-Medina, other pre-Estrada-Espinoza cases, and Medina-Villa. Id. at 1013-14. As it stands now, therefore, a state offense will be a categorical match for “sexual abuse of a minor” if it fits either definition. See id. at 1014-15. Three recent cases have adopted and applied this two-definition approach. See Valencia-Barragan, 608 F.3d 1103, 1107- 08; United States v. Castro, 607 F.3d 566, 568-69 (9th Cir.2010); Rivera-Cuartas v. Holder, 605 F.3d 699, 701-02 (9th Cir.2010). In sum, whatever else our postEstradar-Espinoza cases have established, they have at least made clear that Estrada-Espinoza does not stand for the proposition that we must rely exclusively on federal statutes to define federal generic offenses. 2 For similar reasons, we are also unconvinced by the second part of Farmer’s argument: that Estrada-Espinoza overruled Sinerius. As an initial matter, EstradarSspinoza was interpreting a different statutory provision, 8 U.S.C. §" } ]

[ { "docid": "17472071", "title": "", "text": "that he would “assume and pay until satisfied the second mortgage” on that marital home. The settlement agreement made Karen solely responsible for the first mortgage and an additional mortgage on an attached garage. After the divorce, she continued to live in the marital home with the four children. Paul stopped making payments on the second mortgage in January 1988, and on October 3, 1988, he filed a claim for relief under Chapter 7 of the United States Bankruptcy Code. On November 14, 1988, Karen filed a motion in the bankruptcy court for a determination that Paul’s obligation for the second mortgage was not subject to the automatic stay of 11 U.S.C. § 362(a) because it was in the nature of alimony, maintenance or support. After an evidentiary hearing, which the bankruptcy court accorded the status of an adversary proceeding, the court agreed with Karen’s position and found that appellant’s second mortgage obligation was in the nature of alimony, maintenance or support. Therefore, it ruled that pursuant to 11 U.S.C. § 362(b)(2), the debt is not subject to the automatic stay and is exempt from discharge pursuant to 11 U.S.C. § 523(a)(5). In re Gianakas, 100 B.R. 787 (Bankr.W.D.Pa.1989). Paul appealed to the district court, which affirmed. In re Gianakas, 112 B.R. 737 (W.D.Pa.1990). He now appeals to this court. II. Under the Bankruptcy Code, the general discharge which a debtor obtains under 11 U.S.C. § 727(b) for debts that arose before the date of the order for relief, does not discharge an individual debtor from any debt ... to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order ..., or property settlement agreement, but not to the extent that ... (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support____ 11 U.S.C. § 523(a)(5) (1988) (emphasis added). Concomitantly, “[t]he filing of a petition ... [in bankruptcy] does not operate as a" } ]

[ { "docid": "4299661", "title": "", "text": "“it is a property settlement.” (Doc. 2, at 119.) The distinction matters because, in the Chapter 13 context, spousal claims for alimony, maintenance or support are not dischargeable, whereas property settlements are. Generally speaking, the Bankruptcy Code provides that debts are not dischargeable if they are “for a domestic support obligation,” 11 U.S.C. § 523(a)(5), or if they are owed “to a ... former spouse ... of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor ... in connection with a ... divorce decree.” 11 U.S.C. § 523(a)(15). “Domestic support obligation” is a defined term meaning a debt owed to a former spouse that is “in the nature of alimony, maintenance or support” of the former spouse “without regard to whether such debt is expressly so designated.” 11 U.S.C. § 101(14A)(B). So § 523(a) provides that both alimony/ maintenance/ support debts (hereafter, “DSOs”) and spousal debts other than DSOs (such as property settlements) are non-dis-chargeable. In the Chapter 13 context, DSOs remain nondischargeable. See, e.g., In re Benson, 2011 WL 4435560, *1 (11th Cir. Sept. 26, 2011) (“In a Chapter 13 bankruptcy, a debtor can discharge most of his debts after he completes his bankruptcy plan payments.... But among the debts that cannot be discharged are domestic support obligations.”). However, spousal divorce obligations other than DSOs are dischargeable in Chapter 13 cases because 11 U.S.C. § 1328(a)(2) incorporates § 523(a)(5), but not § 523(a)(15). Overwhelming case law supports this statutory construction. Precedents from this Circuit instruct that the question of “[wjhether a given debt is in the nature of support is an issue of federal law.... In conducting this inquiry, a court cannot rely solely on the label used by the parties.... A debt is in the nature of support or alimony if at the time of its creation the parties intended the obligation to function as support or alimony.” Cummings v. Cummings, 244 F.3d 1268, 1265 (11th Cir.2001); see also Benson, 2011 WL 4435560, at *1 (“a debt is a domestic support obligation if the parties intended it to function as" }, { "docid": "12470496", "title": "", "text": "divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless— (A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the’ debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or (B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor. 11 U.S.C. § 523(a)(15). This section is intended to cover divorce-related debts such as those in property settlement agreements that “should not justifiably be discharged.” King, Collier on Bankruptcy ¶ 523.21. The legislative history of this section reflects the same policy interest in protecting ex-spouses and children that is found in § 523(a)(5) by treating property settlement debts as nondis-chargeable. Many courts (including the bankruptcy and district courts reviewing Ms. Ginter’s adversary proceeding in Mr. Crosswhite’s bankruptcy) have criticized this provision for its lack of clarity. However, we believe that a careful parsing of the provision eliminates some of the confusion. Section 523 provides the general scheme for establishing exceptions from discharge, and two subsections provide specific protection to the debtor’s children, spouse and former spouse. Subsection (5) establishes as nondischargeable the debtor’s obligations of alimony, maintenance and support; subsection (15) sets forth as nondischargeable any marital debt other than alimony, maintenance or support that is incurred in connection with a divorce or separation. Subsection (15) then offers two exceptions to that rule of nondisehargeability under sub-subsections, or subparts, (A) and (B). Therefore, a subsection (15) property settlement debt is not dischargeable unless, under (A), the debtor does not have the ability to pay the debt from disposable income, or, under (B), the benefit to the debtor in discharging the debt outweighs the detrimental consequences to the debtor’s former spouse or child. See 11" }, { "docid": "23503814", "title": "", "text": "$100 per month for a term of forty-eight months; (2) provide health insurance for Nicole; (3) pay 78% of all unreimbursed medical expenses incurred on Nicole’s behalf; (4) pay a $985 outstanding debt to Nicole’s child psychologist; and (5) pay to Martha the sum of $10,392 plus interest, representing Martha’s share of the marital property awarded to Michael under the decree. On September 24, 1996, Michael filed a petition for relief under Chapter 7 of the United States Bankruptcy Code. On October 24,1996, Martha commenced the present adversary proceeding, seeking a determination that certain of Michael’s obligations under the divorce decree are nondischargeable pursuant to 11 U.S.C. § 523(a)(5) and (a)(15). After conducting a trial on the issue, the bankruptcy court ruled that Michael’s obli-. gation to pay alimony, his obligation to pay Nicole’s medical expenses, and his obligation to pay the child psychologist constituted non-dischargeable “alimony, maintenance or support” under § 523(a)(5). The bankruptcy court further ruled that Michael’s $10,392 property settlement obligation constituted a nondischargeable property settlement pursuant to § 523(a) (15). In making its decision under § 523(a)(15), the bankruptcy court found that Michael did not have the ability to pay his debt to Martha from his disposable income, but nevertheless concluded that the debt was nondischargeable because the benefit to Michael of discharging the debt was outweighed by the detrimental effect that nonpayment of the debt would have on Martha. Michael appeals. II. DISCUSSION Section 523(a) of the Bankruptcy Code excepts certain categories of debts from a debt- or’s discharge granted under section 727, 1141,1228(a), 1228(b) or 1328(b). Among the debts rendered nondischargeable by this provision are marital obligations owed to a spouse, former spouse, or child of the debtor incurred by the debtor in the course of a divorce or separation. Specifically, § 523(a)(5) of the Code excepts from discharge any debt: to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or. other order of a court of record, determination made in accordance with" }, { "docid": "20605969", "title": "", "text": "separate subsection under which the Defendant chose to travel, (a)(15), expands the category of debts excepted from discharge to include debts: (15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit; 11 U.S.C. § 523(a)(15) (emphasis added). In other words, (a)(5) debts are DSOs and (a)(15) debts are all other debts owed to a former spouse or child arising from a divorce or other domestic proceeding. Both § 523(a)(5) and (15) illustrate “Congress balancing] two public policies ... the Bankruptcy Code’s purpose of providing a fresh start to a deserving debtor; and the importance of a debtor’s obligations to his family.” In re Brooks, 371 B.R. 761, 766 (Bankr.N.D.Tex.2007) (citing Marrama v. Citizens Bank, 549 U.S. 365, 381, 127 S.Ct. 1105, 1107, 166 L.Ed.2d 956 (2007)). Although (a)(5) and (a)(15) may appear repetitive of one another, there is in an important distinction between the two subsections — in a chapter 13 case, § 523(a)(15) debts are dischargeable, while § 523(a)(5) debts are not. Section 1328 of the Bankruptcy Code, pertaining to a debt- or’s discharge upon completion of a chapter 13 plan, specifically provides that, ... [T]he court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title, except any debt— (2) of the kind specified in section 507(a)(8)(C) or in paragraph (1)(B), (1)(C), (2), (3), (4), (5), (8), or (9) of section 523(a). 11 U.S.C. § 1328(a)(2) (emphasis added). Notably missing are § 523(a)(15) debts. Thus, only those debts which are truly “supportive” in their nature — and properly categorized as (a)(5) debts — are nondis-chargeable. Davidson v. Davidson (Matter of Davidson), 947 F.2d 1294, 1296-97 (5th Cir.1991). When determining whether or not a debt is a nondischargeable DSO, the bankruptcy" }, { "docid": "12289823", "title": "", "text": "dispute.. They are described as follows: 1. $30,000 — -attorney fees owed to Elena Pino’s attorney; 2. $15,628 — “equalization payment”; 8. $3,231.49 — bill of Levitz furniture company; 4. $48,000 — unpaid mortgage payments to Norwest; 5. unknown deficiency amount from foreclosure of home in New Mexico; 6. $5,000 — to Elena for loan used to pay obligation to first wife. What the parties disagree on is whether the specified obligations fall within the “support or maintenance” provisions of 11 U.S.C. 523(a)(5) or the “property settlement” provisions of 11 U.S.C. 523(a)(15) and if under this latter section, whether the Debtor is entitled to discharge all or any of them. ANALYSIS I. Discussion — 11 U.S.C. § 523(a)(5): Section 523(a) of the Bankruptcy Code excepts certain categories of debts from a debtor’s discharge granted under section 727, 1141, 1228(a), 1228(b) or 1328(b). Among the debts rendered non discharge-able by this provision are marital obligations owed to a spouse, former spouse, or child of the Debtor incurred by the Debtor in the course of a divorce or separation. Specifically, § 523(a)(5) of the Code excepts from discharge any debt: to a spouse, former spouse, or child of the Debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 408(a)(3) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debts includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5). Thus, under § 523(a)(5), a debt that is “actually in the nature of alimony, maintenance or support of a spouse," }, { "docid": "23503813", "title": "", "text": "DREHER, Bankruptcy Judge. This appeal allows us to revisit the issue of the dischargeability of marital obligations under § 523 of the Bankruptcy Code. The bankruptcy court in this case held that certain debts owed to the debtor’s former spouse are nondischargeable under 11 U.S.C. § 523(a)(5) and (a)(15). After carefully considering the arguments of the parties and the record on appeal, we affirm in part and reverse in part. I. BACKGROUND Michael (“Michael”) and Martha (“Martha”) Moeder were married on November 20, 1982. During their marriage, the parties adopted Nicole Michelle Moeder, a minor child bom on September 13,1990. Eventually Michael and Martha separated, and, on March 22, 1996, they were divorced by decree entered in Nebraska state court. Under the terms of the divorce decree, Martha was awarded sole custody of Nicole and Michael was ordered to pay child support in the sum of $265 per month until Nicole reached the age of majority, died or became emancipated. In addition, the state court ordered Michael to: (1) pay alimony in the amount of $100 per month for a term of forty-eight months; (2) provide health insurance for Nicole; (3) pay 78% of all unreimbursed medical expenses incurred on Nicole’s behalf; (4) pay a $985 outstanding debt to Nicole’s child psychologist; and (5) pay to Martha the sum of $10,392 plus interest, representing Martha’s share of the marital property awarded to Michael under the decree. On September 24, 1996, Michael filed a petition for relief under Chapter 7 of the United States Bankruptcy Code. On October 24,1996, Martha commenced the present adversary proceeding, seeking a determination that certain of Michael’s obligations under the divorce decree are nondischargeable pursuant to 11 U.S.C. § 523(a)(5) and (a)(15). After conducting a trial on the issue, the bankruptcy court ruled that Michael’s obli-. gation to pay alimony, his obligation to pay Nicole’s medical expenses, and his obligation to pay the child psychologist constituted non-dischargeable “alimony, maintenance or support” under § 523(a)(5). The bankruptcy court further ruled that Michael’s $10,392 property settlement obligation constituted a nondischargeable property settlement pursuant to § 523(a) (15). In" }, { "docid": "10800209", "title": "", "text": "equitably dividing the marital property in Paul’s bankruptcy estate was not a “claim” for purposes of § 101(5) of the Bankruptcy Code, 11 U.S.C. § 101(5), because the New Jersey court had not entered a final divorce decree before Paul filed for bankruptcy. Candace’s Chapter 7 Trustee, Barbara Edwards, opposed the motion to expunge. She argued that Candace had a contingent claim for equitable distribution of marital property, and that was a pre-petition claim against Paul’s estate. The parties’ briefs did not detail the marital property at issue between Paul and Candace, nor why it mattered that the Claim be classified as pre- or post-petition. In general, post-petition claims for equitable distribution are not discharged. In re Ruitenberg, 469 B.R. 203, 206 (Bankr. D.N.J.2012) (citations omitted). And, as acknowledged by the parties, under the changes implemented by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. No. 109-8, § 215(3), 119 Stat. 23 (2005), equitable distribution claims are nondischargeable in Chapter 7. See 11 U.S.C. § 523(a)(15) (excepting from discharge any liability on a claim “to a spouse [or] former spouse ... that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record”); see also Ruitenberg, 469 B.R. at 208; 4 Collier on Bankruptcy (16th ed. Supp.2013) ¶ 523.23 (“Section 523(a)(15) now provides, unqualifiedly, that a property settlement obligation encompassed by section 523(a)(15) is nondischargeable.”). The record before the Bankruptcy Court and the parties’ statements at oral argument shed some light on the practical distinction between a pre- and a post-petition claim in this case. Candace’s Claim was apparently premised on her stake in a partnership that was legally titled in Paul’s name and hence passed to his bankruptcy estate; it would likely be distributed between Paul and Candace as shared marital property in connection with any divorce decree. See N.J. Stat. Ann. § 2A:34-2S.l (“It shall be a rebuttable presumption that each party made a substantial financial or nonfínancial contribution to the acquisition of income and" }, { "docid": "4583689", "title": "", "text": "Debtor (the “Adversary”) seeking a determination of nondischargeability of certain other debts arising under the Judgment, this Court ordered CER and Debtor to mediation of the issues in this main bankruptcy case as well as in the Adversary, [dkt item 36] These matters were not resolved through mediation. The hearing to consider confirmation of Debtor’s plan is now set for March 8, 2012. Legal Analysis Administrative priority status and non-dischargeable status of domestic support obligations in chapter 7 and chapter IS cases To determine whether the Claim is non-dischargeable and entitled to priority status, the Court must analyze §§ 101, 507(a), 523, 727, and 1328, and the changes to those sections made or impacted by the substantial amendments to the Bankruptcy Code enacted by Congress under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”). BAPCPA introduced significant statutory changes regarding the status of debts and obligations arising from the marital relationship, and applied to cases commenced after October 17, 2005. These amendments included adding a definition of a DSO in § 101(14A) , granting a first priority administrative status to DSOs under § 507(a)(1) , and modifying § 523(a) to “significantly limit” a debtor’s ability to discharge debts related to a matrimonial action. In re Schenkein, 2010 WL 3219464, at *4 (Bankr.S.D.N.Y. Aug. 9, 2010). Section 523(a)(5) creates an exception from discharge for any debt “for a domestic support obligation,” and § 523(a)(15) creates an exception from discharge for any debt to a spouse, former spouse, or child of the debtor that is “incurred in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record” and which is in the nature of a DSO but does not fall within the definition of a DSO. Finally, § 1328(a)(2) provides that a chapter 13 discharge does not discharge (among other things) any debt under § 523(a)(5), which is a debt for a “domestic support obligation” as defined under § 101(14A). There is a tension between § 523(a) and § 1328(a) as to whether debts that" }, { "docid": "23503815", "title": "", "text": "making its decision under § 523(a)(15), the bankruptcy court found that Michael did not have the ability to pay his debt to Martha from his disposable income, but nevertheless concluded that the debt was nondischargeable because the benefit to Michael of discharging the debt was outweighed by the detrimental effect that nonpayment of the debt would have on Martha. Michael appeals. II. DISCUSSION Section 523(a) of the Bankruptcy Code excepts certain categories of debts from a debt- or’s discharge granted under section 727, 1141,1228(a), 1228(b) or 1328(b). Among the debts rendered nondischargeable by this provision are marital obligations owed to a spouse, former spouse, or child of the debtor incurred by the debtor in the course of a divorce or separation. Specifically, § 523(a)(5) of the Code excepts from discharge any debt: to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or. other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 408(a)(3) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support. 11 U.S.C. § 523(a)(5) (1994). Thus, under § 523(a)(5), a debt that is “actually in the nature of alimony, maintenance or support of a spouse, former spouse, or child of the debt- or” is nondischargeable in bankruptcy. In 1994, Congress expanded the exception to discharge for marital obligations by adding § 523(a)(15) to the Bankruptcy Code. Section 523(a)(15) renders nondischargeable any debt: not of the kind described in paragraph (5) that is incurred by the debtor in the course of" }, { "docid": "12470495", "title": "", "text": "and support has long been an accepted part of bankruptcy law.”)- This policy is manifest in the Bankruptcy Code’s § 523(a)(5); this section declares nondischargeable a marital obligation that was incurred by the debtor for alimony, maintenance or' support of the debtor’s spouse, former spouse or child. This exception therefore expresses Congress’ determination to protect former spouses in matters of alimony, maintenance, and support despite the Bankruptcy Code’s general policy of providing a debtor with a fresh start. Because of this Congressional determination, a § 523(a)(5) exception from discharge is construed more liberally than other § 523 exceptions. See King, Collier on Bankruptcy ¶ 523.05. Subsection (15) of § 523(a) was added to the Bankruptcy Code in the Bankruptcy Reform Act of 1994 to expand the § 523(a)(5) exception to discharge for marital debts. It states that an individual is not discharged from any debt (15) not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless— (A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the’ debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or (B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor. 11 U.S.C. § 523(a)(15). This section is intended to cover divorce-related debts such as those in property settlement agreements that “should not justifiably be discharged.” King, Collier on Bankruptcy ¶ 523.21. The legislative history of this section reflects the same policy interest in protecting ex-spouses and children that is found in § 523(a)(5) by treating property settlement debts as" }, { "docid": "18515073", "title": "", "text": "agree with the district court’s conclusion that Mr. McCafferty’s obligation to his ex-wife with respect to the STRS benefits could not be exempted from discharge under 11 U.S.C. § 523(a)(5). Section 523 of the Bankruptcy Code provides: (a) A discharge under section 727, 1141,, [sic] 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— H* sfc * * (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record.... 11 U.S.C. § 523(a)(5). Where the state court or the parties to the divorce did not intend to create an obligation in the nature of support, that obligation cannot qualify for a section 523(a)(5) exemption. Calhoun, 715 F.2d at 1109. Here, as the district court found, the state court clearly indicated that the pension distribution was not intended to be a spousal support award, so Ms. McCaf-ferty was not entitled to prevail under 11 U.S.C. § 523(a)(5). Nevertheless, the applicability of section 523(a)(5) and Calhoun is simply irrelevant if, as Ms. McCafferty claims, her share in pension benefits was not eligible for discharge because it was never part of the bankruptcy estate. We believe Ms. McCafferty’s constructive trust argument, perfunctorily dismissed by the district court as “misplaced,” requires further discussion. C. Section 541 of the Bankruptcy Code states that the bankruptcy estate is comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (1988). However, section 541(d) provides that “[property in which the debtor holds ... only legal title and not an equitable interest ... becomes property of the estate ... only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold.” 11 U.S.C. § 541(d). Section 541(d) has often been invoked as the basis for excluding from a bankruptcy estate assets held in" }, { "docid": "18541264", "title": "", "text": "any subsequent liquidation of the assets of Easement Park. Thus, there are two issues presented in this case. First, whether Colleen’s agreement to indemnify and hold plaintiff harmless with respect to the personal debt creates a nondis-chargeable obligation as to plaintiff, and second, whether the escrowed funds are subject to setoff pursuant to 11 U.S.C. § 553. DISCUSSION I note initially that debtor did not list her equity interest in Easement Park on her bankruptcy schedules. Colleen claims she did not list the equity because the Decree does not require Lynus to liquidate any property, and Lynus told her that he would never sell either the marital home or the Easement Park property. I also note that the Chapter 7 trustee was not made a party to this adversary proceeding. The escrowed funds are now property of the estate and there can be no disposition of said funds unless and until the trustee is made a party. However, the dispositive issue is whether the indemnification created a dischargeable debt. Plaintiff alleged in the Complaint that the debt is excepted from discharge pursuant to 11 U.S.C. § 523(a)(2)(A), 523(a)(5), and 523(a)(15)(A) and (B). The only evidence offered, however, related to section 523(a)(15). Section 523(a)(15) was added to the Bankruptcy Code (the “Code”) in the Bankruptcy Reform Act of 1994. There are few published eases and no appellate decisions which define the breadth of the section. Comisky v. Comisky (In re Comisky), 183 B.R. 883, 883 (Bankr.N.D.Cal.1995). Further, there is no legislative history to guide the Court, thus, I am left with the plain language of the Code section. Section 523(a)(15) provides: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (15) not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless— (A) the" }, { "docid": "18552210", "title": "", "text": "in the Agreement was to treat the debts as part of the parties’ property settlement and not as additional maintenance or support to Teresa. Thus, the Court concludes that the debts were in the nature of property settlement, not support or maintenance obligations. Accordingly, the relief sought is denied under Count I. Judgment will be entered in John’s favor on Count I. The marginal reference to the Kalkounos debt being nondischargeable in bankruptcy is not outcome determinative. The notation is ambiguous at best. It did not identify under what basis or provision in the Bankruptcy Code the debt was nondis-chargeable. More importantly, however, for public policy reasons, no weight should be given to language that excepts a debt from discharge in bankruptcy. Klingman v. Levinson (In re Levinson), 58 B.R. 831, 836-37 (Bankr.N.D.Ill.1986), aff'd, 66 B.R. 548 (N.D.Ill.1986), aff'd, 831 F.2d 1292, 1296 n. 3 (7th Cir.1987). Debtors may not contract away the right to the dischargeability of a debt in advance of the bankruptcy case. Id. C. Count II Teresa alternatively claims that the debts are nondischargeable under § 523(a)(15). The Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, 108 Stat. 4106 (Oct. 22, 1994), created § 523(a)(15) to except from discharge certain obligations in the nature of marital property settlements which are not in the nature of alimony or support. Section 523(a)(15) provides in relevant part: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (15) not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless— (A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business," }, { "docid": "14972248", "title": "", "text": "this court must consider the state court’s label, this court is not persuaded by the state court’s label that the $199,532.08 is actually child support. With respect to the intent of the parties, the parties’ positions are in conflict. The debtor testified it was not intended to be child support, while Ms. Killeen and her attorney testified that it was. Both the debtor and Ms. Killeen, however, testified that the debtor was not behind in the $741 payments that had been specifically designated as child support at the time of the partition judgment. The court next considers whether the obligation is in substance in the nature of child support. The fact that the consent judgment separately provided for child support of $741 per month, medical insurance for the children, and school tuition, weighs in favor of the obligation being in the nature of a property settlement. In addition, a lump sum amount, rather than a monthly payment, is more in the nature of a property settlement. Based on all the evidence, the court concludes that the equalizing payment of $199,-532.08 is not excepted from discharge as child support under Section 523(a)(5). Accordingly, the court must examine whether the obligation is nondischargeable under Section 523(a)(15). C. Section 523(a) (15) 1. Burden of proof under Section 523(a) (15) The Bankruptcy Reform Act of 1994 created Section 523(a)(15) to except from discharge certain obligations in the nature of marital property settlements that are not in the nature of alimony or support. Congress added Section 523(a)(15) “in an attempt to lessen the chance that a divorce obligee’s claims might slip through Section 523(a)(5)’s cracks and be discharged unjustly.” Section 523(a)(15) of the Bankruptcy Code, 11 U.S.C. § 523(a)(15), excepts from discharge a debt: (15) not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless— (A) the debtor does not have" }, { "docid": "10036821", "title": "", "text": "justification, either in § 523(a)(15) or state law, that certain “hold harmless” language is required for promises to pay marital debt in order for one spouse to be obligated to the other. As shown below, the Kentucky statutes and jurisprudence do not require talis-manic “hold harmless” language for divorce agreements to pay certain debts to be enforceable by a former spouse. This Court does not take lightly the verbalization of its disagreement with sister courts. However, the Stegall and LaRue cases are attempts to create federal common law under 11 U.S.C. § 523(a)(15) to determine when an obligation is created in a divorce or property settlement. Erie and Klaxon do not give such liberty to the federal bench, whether it is sitting in diversity or in bankruptcy. III. APPLICATION OF THE LAW TO THE FACTS The alimony and child support obligations owed Roberta Carlisle are expressly excluded from discharge under 11 U.S.C. § 523(a)(5). The trading of alimentary obligations for property and other benefits is commonplace in divorce settlements. While it is well-settled that bankruptcy courts may inquire behind these labels, this is not the thrust of the plaintiffs complaint. Instead, the plaintiff seeks a declaration that all debts owed to the marital creditors are non-dis-chargeable. Congress enacted § 523(a)(15) to relieve the bankruptcy system of the chore of discovering the parties’ intent in the divorce settlement. As noted, the parties agreed that a Chapter 13 plan would be filed, and that the debtor would fund the plan and pay the filing fee. The debtor obviously has greater financial means than Roberta. In his deposition, Mr. Ison stated that his understanding of the purpose behind the Chapter 13 was “to get the marital debt payments to a level that Mr. Carlisle could afford to pay them, assume the debt and pay them.” The rational for such an effort was clear — to save the marital property from foreclosure. Otherwise, a joint Chapter 7 would have been in order. The debtor’s obligation to fund a Chapter 13 plan is clearly an obligation to keep Roberta in possession of the Suburban and" }, { "docid": "5693119", "title": "", "text": "sale of the property was entered after the commencement of the bankruptcy and the concomitant creation of the bankruptcy estate. This is simply not the case, and, consequently, cases cited by the Trustee and the Debtor that stand for the proposition that a divorce court has no jurisdiction to partition estate property or determine the interests of non-debtor spouses are irrelevant. The Trustee and the Debtor also assert that even if the Court considers the Superior Court’s order to be a valid one, the Debtor’s obligation to divide the proceeds on a one-third/two-thirds basis is dis-chargeable pursuant to section 523(a)(5)(B) of the Bankruptcy Code. That section provides in relevant part: (a) A discharge under Section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— ... (5) to a spouse, former spouse, or child of the debtor for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made or in accordance with state or territorial law by a government unit, or property settlement agreement, but not to the extent that — _ (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5)(B). The Court is unable to conclude that the judgment of the Connecticut Superior Court should be disrupted. Mrs. Vassilow-itch correctly perceives that the section 523(a)(5) cases cited by the Trustee and the Debtor in their joint memorandum deal with divorce decrees and separation agreements that both allocate jointly held property and create financial obligations. Mrs. Vassilowitch also perceives that only the financial obligations, the debts, the liabilities on claims, cf. 11 U.S.C. § 101(11), are held to be nondischargeable by the courts, not the allocations of property interests themselves. In other words, section 523(a)(5)(B) is simply not applicable where, as here, the property interests of the parties were fixed pre-petition. Accordingly, the Court finds that the interests of the Debtor and Mrs." }, { "docid": "23503816", "title": "", "text": "State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 408(a)(3) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support. 11 U.S.C. § 523(a)(5) (1994). Thus, under § 523(a)(5), a debt that is “actually in the nature of alimony, maintenance or support of a spouse, former spouse, or child of the debt- or” is nondischargeable in bankruptcy. In 1994, Congress expanded the exception to discharge for marital obligations by adding § 523(a)(15) to the Bankruptcy Code. Section 523(a)(15) renders nondischargeable any debt: not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless— (A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependant of the debtor and, if the debt- or is engaged in business, for the payment of expenditures necessary for the continuation, preservation, and operation of sueh business; or (B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor. Id. § 523(a)(15). Section 523(a)(15) excepts irom discharge those debts arising out of marital dissolution proceedings that do not constitute nondischargeable alimony, maintenance or support under § 523(a)(5); i.e. property settlement awards. The legislative history of this provision indicates that it was added to the Bankruptcy Code to" }, { "docid": "18564951", "title": "", "text": "the case. (7) Any interest in property that the estate acquires after the commencement of the case. 11 U.S.C. § 541(a). This provision was also amended by the passage of the Bankruptcy Amendments and Federal Judgeship Act of 1984. See footnote 3. The amendments to § 541(a) are not effective as to this case and so we have reproduced this provision as it stood prior to the passage of the amendments. . (a) Property of the estate includes, in addition to the property specified in section 541 of this title— (1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7 or 11 of this title, whichever occurs first; and (2) earnings from services performed by the debtor after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7 or 11 of this title, whichever occurs first. 11 U.S.C. § 1306(a). . The DPW contends that the debt in issue is nondischargeable under 11 U.S.C. § 523(a)(5), which states as follows: § 523, Exceptions to discharge (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— ****** (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act); or (B) such debt includes a liability designated as alimony maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; 11 U.S.C. § 523(a). This provision was also amended by the passage of the Bankruptcy Amendments and Federal Judgeship Act of 1984. See footnote 3. The amendments to § 523(a) are not effective" }, { "docid": "18571172", "title": "", "text": "the total amount due Plaintiff became $50,944.77. Debtor filed a voluntary petition for bankruptcy relief under chapter 7 of title 11, United States Code (“Bankruptcy Code” or “Code”) on August 16, 1991. As stated, Plaintiff commenced the instant Adversary Proceeding seeking judgment determining $50,057.42 of her judgment against Debtor to be non-dischargeable. Plaintiff alleges that the debt is in the nature of alimony, maintenance and support, which is the type of debt excepted from discharge under section 523(a)(5) (quoted below) of the Code. Plaintiffs allegations as to the nature of the debt, and that it is non-dischargeable, are denied by Debtor. (Debtor’s Answer, dated April 17, 1992 at 2.) Both parties subsequently moved for summary judgment on the issue of dischargeability, and the parties’ respective oral arguments were heard by the Court. LEGAL ANALYSIS The exception from discharge of debts for alimony, maintenance or support derives from section 523(a)(5) of the Bankruptcy Code, entitled “Exceptions to Discharge”; in part, the section provides: A discharge under ... this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— ... such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support[.] 11 U.S.C. § 523(a)(5)(B) (1994) (emphasis ours). Accordingly, the question is routinely whether the debt is actually in the nature of alimony, maintenance or support. Id. If an obligation by a debtor to his or her former spouse is not actually in the nature of alimony, maintenance or support, but rather comprises a property settlement or division of marital property between the former spouses, then the obligation is fully dischargeable in bankruptcy. Brody v. Brody, 3 F.3d 35, 38 (2d Cir.1993) (citing Donahue v. Donahue (In" }, { "docid": "4299660", "title": "", "text": "See, e.g., In re Tennyson, 611 F.3d 873, 875 (11th Cir.2010) (“Conclusions of law reached by a bankruptcy court ... are reviewed de novo.”) (citation and internal quotation marks omitted). In sum, then, the Bankruptcy Court’s “[ljegal conclusions ... are reviewed de novo and findings of fact are reviewed for clear error.” In re Celotex Corp., 613 F.3d 1318, 1322 (11th Cir.2010); see also In re Cox, 493 F.3d 1336, 1340 n. 9 (11th Cir.2007) (“Like the district court, we review the bankruptcy court’s findings of fact for clear error and the court’s conclusions of law and mixed questions of law and fact de novo.”). B. Is the Pension Settlement Dis-chargeable in Bankruptcy? The first issue the parties presented to the Bankruptcy Court was whether the pension benefit settlement (the “Pension Settlement”) set forth in Paragraph G(9) of the September 1994 Judgment was in the nature of a property settlement, or whether it was in the nature of alimony, support or maintenance. At the conclusion of the August 9 hearing, the Bankruptcy Court held that “it is a property settlement.” (Doc. 2, at 119.) The distinction matters because, in the Chapter 13 context, spousal claims for alimony, maintenance or support are not dischargeable, whereas property settlements are. Generally speaking, the Bankruptcy Code provides that debts are not dischargeable if they are “for a domestic support obligation,” 11 U.S.C. § 523(a)(5), or if they are owed “to a ... former spouse ... of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor ... in connection with a ... divorce decree.” 11 U.S.C. § 523(a)(15). “Domestic support obligation” is a defined term meaning a debt owed to a former spouse that is “in the nature of alimony, maintenance or support” of the former spouse “without regard to whether such debt is expressly so designated.” 11 U.S.C. § 101(14A)(B). So § 523(a) provides that both alimony/ maintenance/ support debts (hereafter, “DSOs”) and spousal debts other than DSOs (such as property settlements) are non-dis-chargeable. In the Chapter 13 context, DSOs remain nondischargeable. See, e.g., In re" } ]

[ { "docid": "2110568", "title": "", "text": "this holding was to deny King the opportunity to present its defense that “BEER NUTS” was a descriptive term not available for appropriation as a trademark. The court further held that the use of the picture and the name “KING’S BEER NUTS” constituted infringements. Judge Young concluded: “Thus, the only remaining issue before the Court is whether plaintiff is the assignee of Brewster Food Service to the trademark “BEER NUTS.” If plaintiff is, summary judgment will be entered on its behalf . . . .” On June 12, 1972, Judge Young ruled that the plaintiff had demonstrated that it was the assignee of Brewster Food Service and entered summary judgment. King first contends that the 1958 agreement does not preclude the assertion of the defense that the trademark was merely descriptive. We find this argument to be without merit. An assertion that a name is merely descriptive is an attack upon the validity of the trademark. A descriptive mark in appropriate situations will not be recognized as a valid trademark. 8 Callmann, The Law of Unfair Competition Trademarks and Monopolies (3d ed.) §§ 74, 74.2. King next argues that even if the agreement precludes an attack upon the mark’s validity, that agreement should not be.enforced. We recognize that to give effect to such agreements would impede the efficacy of the defense that the words are merely descriptive. It long has been recognized that a mark which is valid and enforceable at one point in time may subsequently evolve into an invalid mark. DuPont Cellophane Co., Inc. v. Waxed Products Co., Inc., 85 F.2d 75 (2d Cir.), cert. denied, 299 U.S. 601, 57 S.Ct. 194, 81 L.Ed. 443 (1936); American Thermos Products Co. v. Aladdin Industries, Inc., 207 F.Supp. 9 (D.Conn.1962), aff’d, 321 F.2d 577 (2d Cir. 1963); Bayer Co., Inc. v. United Drug Co., 272 F. 505 (S.D.N.Y. 1921). In the present case, however, we must weigh the public benefit in considering trademark principles in connection with the policy of upholding the law of contracts. In Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969)," } ]

[ { "docid": "23071919", "title": "", "text": "determination as a factual matter. See, e.g., Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 329 (6th Cir.) (“It is well settled that words and their pictorial representation are treated the same in determining the likelihood of confusion between two marks.”), cert. denied, 414 U.S. 858, 94 S.Ct. 66, 38 L.Ed.2d 108 (1973); Izod, Ltd. v. Zip Hosiery Co., 405 F.2d 575, 577 (C.C.P.A.1969) (“Members of the purchasing public viewing appellant’s pictorial representation of a feline animal as applied to men’s and women’s outer shirts and appellee’s literal designation TIGER HEAD for men’s work socks might well and reasonably conclude that the respective goods of the parties emanated from the same source.”): Instrumentalist Co. v. Marine Corps League, 509 F.Supp. 323, 328 (N.D.Ill.1981) (“the fact that defendants’ certificate most prominently displays a picture of Sousa (rather than a literal transcription of his name) does not preclude a finding of infringement”). See generally 2 J. McCarthy, Trademarks and Unfair Competition, § 23:8 at 68 & n. 10 (2d ed. 1984) (citing cases). Judge MacMahon made such a determination here: we find that the similarity of the mark exists in the strong probability that prospective purchasers of defendant’s product will equate or translate Mobil’s symbol for “Pegasus” and vice versa. We find that the word “Pegasus” evokes the symbol of the flying red horse and that the flying horse is associated in the mind with Mobil. In other words, the symbol of the flying horse and its name “Pegasus” are synonymous. That conclusion finds support in common sense as well as the record. The third Polaroid factor addresses the competitive proximity between the two marks. Pegasus Petroleum points out that while Judge MacMahon correctly found that Mobil and Pegasus Petroleum both compete in the oil trading business, Mobil does not use its flying horse trademark in that field. However, “direct competition between the products is not a prerequisite to relief____ Confusion, or the likelihood of confusion, not competition, is the real test of trademark infringement.” Continental Motors Corp. v. Continental Aviation Corp., 375 F.2d 857, 861 (5th Cir.1967) (citations omitted)." }, { "docid": "21436064", "title": "", "text": "1902, 23 L.Ed.2d 610 (1969), the Supreme Court repudiated the rule of patent licensee es-toppel, under which a licensee is prohibited from challenging the validity of the patent that is the basis of the license agreement. The Court found that, among other reasons, “the strong federal policy favoring the full and free use of ideas in the public domain,” id. at 674, 89 S.Ct. 1902, outweighed the contract law principle “that forbids a purchaser to repudiate his promises simply because he later becomes dissatisfied with the bargain he has made.” Id. at 668, 89 S.Ct. 1902. Several courts, including our predecessor court, have applied the Lear balancing test to trademarks as well as patents, recognizing the public interest in ensuring trademark validity. See Idaho Potato Comm’n v. M & M Produce Farm & Sales, 335 F.3d 130, 136 (2d Cir.2003) (“Even when courts have not expressly applied the Lear test [to trademark actions], they have recognized that agreements related to intellectual property necessarily involve the public interest and have enforced such agreements only to the extent that enforcement does not result in a public injury.”); MWS Wire Indus., Inc. v. Cal. Fine Wire Co., 797 F.2d 799, 803 (9th Cir.1986); Wells Cargo, Inc. v. Wells Cargo, Inc., 606 F.2d 961, 965 (CCPA 1979); Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 329 (6th Cir.1973). We have in particular recognized that the public policy in favor of allowing challenges to invalid marks weighs in favor of cabining the doctrine of res judicata at the Patent and Trademark Office. See Mayer/Berkshire Corp. v. Berkshire Fashions, Inc., 424 F.3d 1229, 1234 (Fed.Cir.2005) (“Caution is warranted in the application of preclusion by the PTO, for the purposes of administrative trademark procedures include protecting both the consuming public and the purveyors.”). This interest further supports our conclusion that challenges to the validity of a trademark registration should not be treated as compulsory counterclaims to trademark infringement actions. Ill We turn then to the second basis for applying claim preclusion against defendants — where the effect of the later action is to collaterally attack" }, { "docid": "2633652", "title": "", "text": "Strauss & Co., 799 F.2d 867 (2d Cir.1986); 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23:7 (4th ed.2005)). . Id. (quoting McCarthy § 11.82 at 11-16). . Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.1994). . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). . Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting). . Id. . Id. . See Argo v. Blue Cross Blue Shield, 452 F.3d 1193, 1199 (10th Cir.2006). . (Doc. 110 at 7-8.) . Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 924 (10th Cir.1986). . Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 669 (5th Cir.2000); McCarthy § 19:48 (\"the prima facie and incontestable provisions of the Lanham Act apply only to the goods or services specified in the registration”); § 32:152 (“incontestability is limited to use of the mark on the goods or services specified in the § 15 affidavit or the § 9 renewal.”). . In re Save Venice New York, Inc., 259 F.3d 1346, 1353 (Fed.Cir.2001). . Donchez v. Coors Brewing Co., 392 F.3d 1211, 1216 (10th Cir.2004)." }, { "docid": "2633651", "title": "", "text": "286, 290 (S.D.N.Y.2007) (comparing only the front panels of toothpaste packaging based on (1) plaintiff's consumer study showing that consumers do not usually read the back or side panels of toothpaste packaging, and (2) because, as the non-moving party, the court was required to accept all reasonable inferences in plaintiff’s favor); World Wrestling Fed. Ent’t Inc. v. Big Dog Holdings, Inc., 280 F.Supp.2d 413, 432-33 (W.D.Pa.2003) (analyzing the front and back of various allegedly infringing T-shirt designs). . See Universal Money Ctrs., Inc., 22 F.3d at 1531 (explaining that while the dominant portion of each mark is entitled to greater weigh, each mark should still be considered as a whole); Big Dog Motorcycles, L.L.C., 402 F.Supp.2d at 1327-28. . Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 548 (6th Cir.2005). . Big Dog Motorcycles, L.L.C., 402 F.Supp.2d at 1327-28 (citing Hermes Int’l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104 (2d Cir.2000); Payless Shoesource, Inc. v. Reebok Int’l, Ltd., 998 F.2d 985 (Fed.Cir.1993); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867 (2d Cir.1986); 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23:7 (4th ed.2005)). . Id. (quoting McCarthy § 11.82 at 11-16). . Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.1994). . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). . Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting). . Id. . Id. . See Argo v. Blue Cross Blue Shield, 452 F.3d 1193, 1199 (10th Cir.2006). . (Doc. 110 at 7-8.) . Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 924 (10th Cir.1986). . Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 669 (5th Cir.2000); McCarthy § 19:48 (\"the prima facie and incontestable provisions of the Lanham Act apply only to the goods or services specified in the registration”); § 32:152 (“incontestability is limited to use of the mark on the goods or services specified in the" }, { "docid": "23071918", "title": "", "text": "the sophistication of the purchasers. We agree with both the district court’s determination of each of the Polaroid factors and its balancing of those factors to arrive at its conclusion that Pe gasus Petroleum infringed upon Mobil’s senior mark — the flying horse. Pegasus Petroleum does not dispute the district court’s conclusion that the strength of Mobil’s flying horse mark is “without question, and perhaps without equal.” As an arbitrary mark — there is nothing suggestive of the petroleum business in the flying horse symbol — Mobil’s symbol deserves “the most protection the Lanham Act can provide.” Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 871 (2d Cir.1986). On the other hand, Pegasus Petroleum vigorously attacks the district court’s finding of similarity between the two marks, arguing that the district court erred by blindly equating the word “Pegasus” with its pictorial representation — Mobil’s flying horse. While we agree that words and their pictorial representations should not be equated as a matter of law, a district court may make such a determination as a factual matter. See, e.g., Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 329 (6th Cir.) (“It is well settled that words and their pictorial representation are treated the same in determining the likelihood of confusion between two marks.”), cert. denied, 414 U.S. 858, 94 S.Ct. 66, 38 L.Ed.2d 108 (1973); Izod, Ltd. v. Zip Hosiery Co., 405 F.2d 575, 577 (C.C.P.A.1969) (“Members of the purchasing public viewing appellant’s pictorial representation of a feline animal as applied to men’s and women’s outer shirts and appellee’s literal designation TIGER HEAD for men’s work socks might well and reasonably conclude that the respective goods of the parties emanated from the same source.”): Instrumentalist Co. v. Marine Corps League, 509 F.Supp. 323, 328 (N.D.Ill.1981) (“the fact that defendants’ certificate most prominently displays a picture of Sousa (rather than a literal transcription of his name) does not preclude a finding of infringement”). See generally 2 J. McCarthy, Trademarks and Unfair Competition, § 23:8 at 68 & n. 10 (2d ed. 1984) (citing cases). Judge MacMahon" }, { "docid": "12846019", "title": "", "text": "Clover Club Foods Co., 711 F.2d 934, 937-38 (10th Cir.1983); Ideal Industries, Inc. v. Gardner Bender, Inc., 612 F.2d 1018, 1027-28 (7th Cir.1979), cert. denied, 447 U.S. 924, 100 S.Ct. 3016, 65 L.Ed.2d 1116 (1980); Venetianaire Corp. of America v. A & P Import Co., 429 F.2d 1079, 1083 (2d Cir.1970). Here there is little in the record before us to suggest the former (only the large size of the words on the screen); while there is much to show the latter (timing, meaning, context, intent, and surrounding circumstances). Consequently, the appellants have shown no real likelihood of relevant confusion. We also note that the only federal court which has decided a case nearly identical to the one before us, a case in which a station planning to televise a public parade was sued by the parade’s promoter who had granted “exclusive” rights to another station, reached a conclusion similar to the one we draw here. See Production Contractors, Inc. v. WGN Continental Broadcasting Co., 622 F.Supp. 1500, 1504 (N.D.Ill.1985). Reviewing the promoter’s Lanham Act claim that the “unauthorized” broadcast would create a “false impression” of sponsorship, the court concluded that it fell “far short of establishing likelihood of confusion” among viewers that the defendant station was the “official” or “authorized” broadcaster of the parade. See id. at 1504-05. Similarly, we do not see how Channel 5’s broadcast could likely confuse viewers that it bore the imprimatur of the BAA. The BAA makes one further argument. It says that, because Channel 5, in earlier years, paid it for a license to use the mark for its broadcasts, Channel 5 is “es-topped” from contesting the mark’s “validity.” The estoppel cases that BAA cites, however, all concern a challenge to the validity of a mark, a challenge absent here. See, e.g., Professional Golfers Ass’n v. Bankers Life & Casualty Co., 514 F.2d 665, 671 (5th Cir.1975) (challenge based on abandonment); Seven-Up Bottling Co. v. Seven-Up Co., 420 F.Supp. 1246, 1251 (E.D.Mo.1976), aff'd, 561 F.2d 1275 (8th Cir.1977) (challenge based on false registration statements); see also 1 J. McCarthy § 18.20 (“trademark licensee" }, { "docid": "12846021", "title": "", "text": "is estopped from challenging the validity of the li-censor’s mark”). Regardless, we can find no case that would even prevent a challenge by a prior licensee, based upon post-license facts, after the license has expired. See generally 3 Callman, Unfair Competition, Trademarks & Monopolies § 19.48 (4th ed. 1989). We cannot think of any reason why such a licensee ought to be estopped; or why, a grant of a license should permanently immunize a trademark holder from legal attack. Compare Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969) (estoppel doctrine does not apply to patent licensees) with Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 328-29 (6th Cir.), cert. denied, 414 U.S. 858, 94 S.Ct. 66, 38 L.Ed.2d 108 (1973) (estoppel doctrine does apply to trademark licensees). Finally, we note that amici in support of appellants have raised various questions of state law. Appellants themselves, however, have not raised those questions; consequently, they are not properly before us. See United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60 n. 2, 101 S.Ct. 1559, 2176 n. 2, 67 L.Ed.2d 732 (1981); Knetsch v. United States, 364 U.S. 361, 370, 81 S.Ct. 132, 137, 5 L.Ed.2d 128 (1960). The district court’s denial of the motion for preliminary injunction is Affirmed." }, { "docid": "4921674", "title": "", "text": "services involved which the present bill does not contemplate. Id. . Even were the Court to find that the sales of the poster violated the defendant’s rights, the most relief that it should grant would be an injunction against sales, not against all distribution of the poster. . This was registered by the Patent Office on September 18, 1973, as a trademark, service mark and collective membership mark, for use on, among other things, uniforms and equipment used in connection with track and field games, jewelry, glassware, paper items, pamphlets, books, souvenirs, and “advertisements' to raise money to support the Olympic Games.” U.S.P.O. Registration No. 968,566 (Sept. 18, 1973) [admitted into evidence as Defendant’s Exhibit A, Exhibit A]. . Both the torch and the rings appear prominently as part of an emblem registered to the defendant as a trademark, service mark and collective membership mark for use on similar items. U.S.P.O. Registration No. 980,734 (March 26, 1974) [admitted into evidence as Defendant’s Exhibit A, Exhibit B], . See, e. g., American Footwear Corp. v. General Footwear Co., 609 F.2d 655, 664 (2d Cir. 1979); Mushroom Makers, Inc. v. R. G. Barry Corp., 580 F.2d 44, 47 (2d Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979). . See, e. g., Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 204-05 (2d Cir. 1979); James Burrough Ltd. v. Sign of the Beefeater, Inc., 540 F.2d 266, 274 (7th Cir. 1976); Professional Golfers Association v. Bankers Life & Casualty Co., 514 F.2d 665, 670 (5th Cir. 1975). . 15 U.S.C. §§ 1114(1)(a), 1125(a); see American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160, 164-65 (2d Cir. 1978). . See, e. g., R. G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, at 657 (2d Cir. 1979); Fur Information & Fashion Council v. E. F. Timme & Son, Inc., 501 F.2d 1048, 1051-52 (2d Cir.), cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974). . See Dallas Cowboys Cheerleaders, supra, 604 F.2d at 205 (unauthorized use of uniform of Dallas" }, { "docid": "15614642", "title": "", "text": "Chrysler purchases parts from independent manufacturers who make the products to Chrysler’s specifications. As part of such an agreement, Chrysler licenses the manufacturer to print the registered Chrysler trademarks on the products’ packaging. Alloy served as a Chrysler licensee for an unspecified period of time. As a licensee, Alloy received the printing plates necessary to affix the Chrysler trademarks. In addition, Alloy promised to assure that no unauthorized or improper use of the Chrysler trademarks would be made. Brief in Support of Plaintiff’s Motion to Strike at Appendix A. In 1981, Alloy’s license was terminated for reasons not specified to the court. See Defendant’s Memorandum in Opposition to Plaintiff’s Motion to Strike at 2. In 1985, Chrysler brought this action alleging Alloy sold parts in packaging containing the Chrysler trademarks after its license was terminated. In defense, Alloy now claims Chrysler has abandoned its right to enforce its marks because it failed to properly monitor the products Alloy produced for Chrysler. II. Discussion Under the doctrine of licensee estoppel, during the course of the license, a licensee is estopped from claiming it owns or disputing the validity of the licensor’s trademark. See Smith v. Dental Products Co., Inc., 140 F.2d 140, 148 (7th Cir.), cert. denied, 322 U.S. 743, 64 S.Ct. 1146, 88 L.Ed. 1576 (1944); Donald F. Duncan, Inc. v. Royal Tops Manufacturing Co., Inc., 343 F.2d 655, 657 (7th Cir.1965). The basis for this rule is that a licensee who freely enters into a license and pays royalties or agrees to the limitations imposed by a li censor effectively recognizes that the licensor possesses a valid trademark. Smith, 140 F.2d at 148. Moreover, after a license terminates, a former licensee is still estopped from challenging its former licensor’s trademark based upon facts which arose during the course of the license. Smith, 140 F.2d at 148; Professional Golfers Association v. Bankers Life & Casualty Co., 514 F.2d 665, 671 (5th Cir.1975); Callman, The Law of Unfair Competition, Trademarks, and Monopolies 454 (1969). However, as to facts which arise after the license has been cancelled, the former licensee stands in" }, { "docid": "4921675", "title": "", "text": "Footwear Co., 609 F.2d 655, 664 (2d Cir. 1979); Mushroom Makers, Inc. v. R. G. Barry Corp., 580 F.2d 44, 47 (2d Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979). . See, e. g., Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 204-05 (2d Cir. 1979); James Burrough Ltd. v. Sign of the Beefeater, Inc., 540 F.2d 266, 274 (7th Cir. 1976); Professional Golfers Association v. Bankers Life & Casualty Co., 514 F.2d 665, 670 (5th Cir. 1975). . 15 U.S.C. §§ 1114(1)(a), 1125(a); see American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160, 164-65 (2d Cir. 1978). . See, e. g., R. G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, at 657 (2d Cir. 1979); Fur Information & Fashion Council v. E. F. Timme & Son, Inc., 501 F.2d 1048, 1051-52 (2d Cir.), cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974). . See Dallas Cowboys Cheerleaders, supra, 604 F.2d at 205 (unauthorized use of uniform of Dallas Cowboys Cheerleaders in pornographic film found to cause “confusion which has ‘a tendency to impugn’ ”); Boston Professional Hockey Ass’n v. Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004, 1012 (5th Cir.), cert. denied, 423 U.S. 868, 96 S.Ct. 132, 46 L.Ed.2d 98 (1975) (unauthorized manufacture of embroidered emblems of professional hockey teams held likely to confuse because the buying public would know “that the source and origin of the trademark symbols were in plaintiffs”); Chemical Corp. v. Anheuser-Busch, Inc., 306 F.2d 433, 439 (5th Cir. 1962), cert. denied, 372 U.S. 965, 83 S.Ct. 1089, 10 L.Ed.2d 129 (1963) (unauthorized use of “Where there’s life there’s Bugs” held to infringe plaintiff’s rights in “Where there’s life . . . there’s Bud”); Gucci Shops, Inc. v. R. H. Macy & Co., 446 F.Supp. 838, 840 (S.D.N.Y.1977) (Lanham Act protected plaintiff’s mark “Gucci” from ridicule by defendant’s unauthorized sale of “Gucchi Goo” diaper bags); Coca-Cola Co. v. Gemini Rising, Inc., 346 F.Supp. 1183, 1189 (E.D.N.Y.1972) (“Enjoy Cocaine” poster found to associate plaintiffs product with noxious substance" }, { "docid": "9762740", "title": "", "text": "and its legislative history reveals no congressional design to bestow such broad property rights on trademark owners. Its scope is much narrower: to protect consumers against deceptive designations of the origin of goods and, conversely, to enable producers to differentiate their products from those of others.” International Order of Job’s Daughters v. Lindeburg and Co., 633 F.2d 912, 918 (9th Cir.1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3086, 69 L.Ed.2d 956 (1981). See also Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 329 (6th Cir.), cert. denied, 414 U.S. 858, 94 S.Ct. 66, 38 L.Ed.2d 108 (1973) (\"The essence of the wrong of trademark infringement is the passing off of the goods of one as those of another.”); Continental Motors Corp. v. Continental Aviation Corp., 375 F.2d 857, 861 (5th Cir. 1967) (\"Confusion, or the likelihood of confusion ... is the real test of trademark infringement.”); Safeway Stores, Inc. v. Safeway Properties, Inc., 307 F.2d 495, 497 (2d Cir.1962) (“The keystone in that portion of the law of unfair competition which relates to trademarks is the avoidance of confusion in the minds of the buying public.\"); McCarthy § 2.03 (“Whatever route one travels, whether by trademark infringement or unfair competition, the signs give direction to the same enquiry — whether defendant’s acts are likely to cause confusion\"). .The public is less likely to be deceived by a counterfeit label if the technology used is poor. . In fact, consumer welfare may be promoted where an independent dealers/repairer duplicates a mark in order to indicate the type of products they repair or sell, so long consumers are not confused in the process. See, e.g., Volkswagenwerk Aktiengesellschaft v. Church, 411 F.2d 350, 352 (9th Cir.1969), supp. op., 413 F.2d 1126 (9th Cir.1969); General Electric Co. v. A-All Appliance Parts Co., 224 U.S.P.Q. 1054, 1984 WL 63136 (E.D.Mich.1984). . A contrary result, which Westinghouse champions, is inconsistent not only with a half-centuiy of jurisprudence, but also with logic itself. Suppose that a trademark holder knows that a reconditioner has a pallet of labels, originally printed by the trademark holder, and" }, { "docid": "18704531", "title": "", "text": "plaintiffs for trademark infringement under 15 U.S.C. § 1114; and, for the same reasons (and predicated on the same findings of fact), the defendants are liable to the plaintiffs for violation of R.I.Gen.Laws § 6-2-11. VI. At first blush, the plaintiffs’ unfair competition case is a clearer one; but here, too, legal problems lurk. The credible evidence is that Lotito’s use of the AILU’ mark creates the false impression that the defendants’ products are printed by a union shop. Thus, the unsportsmanlike mercantile conduct complained of sounds, in a very real sense, of false advertising. It is clear that trademark infringement is but a narrow facet of the broader law of unfair competition. Westward Coach Manufacturing Co. v. Ford Motor Co., 388 F.2d 627, 632 (7th Cir.), cert. denied, 392 U.S. 927, 88 S.Ct. 2286, 20 L.Ed.2d 1386 (1968). See also 1 J. McCarthy, TRADEMARK AND UNFAIR COMPETITION § 2.2 (1973). Consequently, although a valid claim of trademark infringement will normally by its terms simultaneously state a claim for unfair competition as well, Boston Professional Hockey Association, Inc. v. Dallas Cap & Emblem Manufacturing, Inc., 510 F.2d at 1010, the converse is not true. And, a viable unfair competition claim may rise, like the storied Phoenix, from the ashes of an unsuccessful trademark claim. Professional Golfers Association v. Bankers Life & Casualty Co., 514 F.2d at 671. While it is true that the plaintiffs’ § 1114 claim is not a burnt-out case, see Part V, ante, it does not pass muster with a flourish of absolute certitude. And where (as here) a claim of trademark infringement, although zoetic, is at the outer periphery of § 1114, the shadings of gray can often be more completely dissipated under the § 1125 glass or in the light of the common law. 15 U.S.C. § 1125(a), among other things, prohibits the use of “a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same.” It allows a civil action to be brought by “any person who believes that he is" }, { "docid": "15177427", "title": "", "text": "conduct was undertaken in good faith, the balance of equities may not justify injunctive relief.” Restatement (Third) of Unfair Competition § 35, comment (b). This situation in which no injunctive relief at all is issued should be distinguished from a situation in which some injunctive relief is appropriate but the scope of that relief does not amount to a complete prohibition of the use of the mark. The court has broad power in fashioning an appropriate remedy: In exercising this equitable power, courts may tailor appropriate relief to the particular facts and circumstances of each case, ranging from an order requiring the defendant to cease use of the infringing mark altogether, see e.g., Baglin v. Cusenier Co., 221 U.S. 580, 31 S.Ct. 669, 55 L.Ed. 863 ([1911] 1991), or to take affirmative actions to disassociate itself from the mark owner, see, e.g., Grenadier Corp. v. Grenadier Realty Corp., 568 F.Supp. 502 (S.D.N.Y.1983), to orders permitting the defendant to use a distinctive logo form of the infringing mark, see, e.g., AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir.1979), or to advertise its former affiliation with the plaintiff. See, e.g. Professional Golfers Ass’n [v.] Bankers Life & Casualty Co., 514 F.2d 665 (5th Cir. [1975] 1995). The ability of the federal courts to enjoin infringing uses extends to the power to issue injunctions against a resumption of discontinued infringement. See, e.g., Heaton Distrib. Co. v. Union Tank Car Co., 387 F.2d 477 (8th Cir.1967). Virginia S. Taylor & Theodore H. Davis, Jr., Enforcement of Trademark Rights: Patent and Trademark Office Proceedings, Suits for Infringement in Federal Court, and Preliminary Injunctions, C602 ALI-ABA 111, at 164 (1991). Accord Evans v. Buchanan, 555 F.2d at 378. The fact that only a possibility of confusion has been proven in this case will have a great impact on the scope of injunctive relief, should this court determine that some form of injunctive relief is appropriate. “ ‘As with any equity case, the nature of the violation determines the scope of the remedy.’ ” Evans v. Buchanan, 555 F.2d at 380 (constitutional rights case) (quoting" }, { "docid": "15177428", "title": "", "text": "F.2d 341 (9th Cir.1979), or to advertise its former affiliation with the plaintiff. See, e.g. Professional Golfers Ass’n [v.] Bankers Life & Casualty Co., 514 F.2d 665 (5th Cir. [1975] 1995). The ability of the federal courts to enjoin infringing uses extends to the power to issue injunctions against a resumption of discontinued infringement. See, e.g., Heaton Distrib. Co. v. Union Tank Car Co., 387 F.2d 477 (8th Cir.1967). Virginia S. Taylor & Theodore H. Davis, Jr., Enforcement of Trademark Rights: Patent and Trademark Office Proceedings, Suits for Infringement in Federal Court, and Preliminary Injunctions, C602 ALI-ABA 111, at 164 (1991). Accord Evans v. Buchanan, 555 F.2d at 378. The fact that only a possibility of confusion has been proven in this case will have a great impact on the scope of injunctive relief, should this court determine that some form of injunctive relief is appropriate. “ ‘As with any equity case, the nature of the violation determines the scope of the remedy.’ ” Evans v. Buchanan, 555 F.2d at 380 (constitutional rights case) (quoting Swann v. Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971)). In trademark infringement actions, prevention of a likelihood of confusion determines the appropriate scope of injunctive relief. Restatement (Third) of Unfair Competition § 35, comment (c) (See e.g., Charles Jacquin Et Cie, Inc. v. Destileria Serralles, Inc., 921 F.2d 467 (3d Cir.1990) (injunction prohibiting use limited to products likely to cause confusion); Holiday Inns of America, Inc. v. B & B Corp., 409 F.2d 614 (3d Cir.1969)). Thus, when a court perceives a great likelihood of confusion, as when an infringer uses the exact trademark, a narrow injunction permitting continued use of an incontestable trademark is an abuse of discretion. United States Jaycees v. Philadelphia Jaycees, 639 F.2d 134, 141-42 (3d Cir.1981). Similarly, a disclaimer disaffirming any connection with plaintiff may be proper where the evidence shows a potential for confusion, not a substantial likelihood of confusion. WAWA, Inc. v. Commons at WAWA, Inc., No. CIV. OA.89-4554, 1990 WL 52550, at *1 (E.D.Pa. 1990) (Pollack, J.). See also" }, { "docid": "7649506", "title": "", "text": "89 S.Ct. 1902. It noted that: The parties’ contract, however, is no more controlling on this issue than is the State’s doctrine of estoppel, which is also rooted in contract principles. The decisive question is whether overriding federal policies would be significantly frustrated if licensees could be required to pay royalties during the time they are challenging patent validity in the courts. Id. at 673, 89 S.Ct. 1902. The Lear court thus balanced the policies underlying state contract law against those animating federal patent law in placing limits on the parties’ contractual obligations. In M & M III, the Second Circuit noted that courts had frequently applied the Lear balancing test to trademark licensing contracts. 335 F.3d at 136. It went on to observe that courts have generally precluded licensee challenges to trademarks after weighing the public interest in trademarks against contract principles. Id. (citing MW'S Wire Indus., Inc. v. Cal. Fine Wire Co., 797 F.2d 799, 803 (9th Cir.1986), and Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 329 (6th Cir.1973)). It concluded that the trademark cases were not controlling in the certification mark context, however, because the two types of marks serve different public interests. Id. at 138. Trademarks protect the public from confusion by accurately indicating the source of a product. They preserve a producer’s good will “in order that the purchasing public may not be enticed into buying A’s product when it wants B’s product.” Id. (quoting T & T Mfg. Co. v. AT. Cross Co., 587 F.2d 533, 538 (1st Cir.1978)). Trademark owners have a monopoly over their marks, which they can license as they see fit as long as such licensing does not cause public confusion. Id. A certification mark, on the other hand, is a mark used by someone other than its owner to signify that a product or service has a certain characteristic. 3 McCarthy on Trademarks and Unfair Competition § 19:91 (4th ed. 2005) (“McCarthy”). The certification mark owner is required to license the mark to anyone who meets the certification criteria. M & M III, 335 F.3d at" }, { "docid": "4117288", "title": "", "text": "See 15 U.S.C. § 1051, ei seq. . Sometimes referred to at common law as \"technical trademarks”. Sweetarts v. Sunline, Inc., 380 F.2d 923 (8th Clr. 1967); Prosite Products, Inc. v. Bonnie Brite Products Corp., 206 F.Supp, 511 (S.D.N.Y.1962); 1 McCarthy, Trademarks and Unfair Competition, § 16:2, . Blisscraft of Hollywood v. United Plastics Company, 294 F.2d 694 (2nd Cir. 1961); Caesar World, Inc. v. Caesar’s Palace, Inc,, 179 U.S, P.Q. 14 (D.Neb. 1973); George Washington Mint, Inc. v. Washington Mint, Inc,, 349 F.Supp. 255 (N.D.Ohio 1972); Proxite Products, Inc. v. Bonnie Brite Products Corp., supra; 1 McCarthy §§ 11;2, 15:1, 16:2, Cf., American Petrofina, Inc. v. Petrofina of California, Inc., 189 U.S.P.Q. 67 (C.D.Calif.1975), . Blisscraft of Hollywood v. United Plastics Company, supra; American Petrofina, Inc. v. Petrofina of California, Inc,, supra; Dresser Industries, Inc. v. Heraeus Engelhard Vacuum, Inc,, 267 F.Supp. 963 (W.D.Pa,1967), aff’d, 395 F.2d 457 (3rd Cir. 1968), cert. denied 393 U.S. 934, 89 S.Ct. 293, 21 L.Ed.2d 270 (1968); Proxite Products, Inc. v. Bonnie Brite Products Corp., supra; 1 McCarthy §§ 13:2, 15:1, 3 Callman, Unfair Competition, Trademarks & Monopolies (3d ed.) § 77.1; Norm Thompson Outfitters, Inc. v. General Motors Corp., 448 F.2d 1293 (9th Cir. 1971); Field Enterprises Educational Corp. v. Cove Industries, Inc., 297 F.Supp. 989 (E.D.N.Y.1969). . Kampgrounds of America v. North Delaware A-OK Campgrounds, Inc., 415 F.Supp. 1288 (D.Del.1976), aff’d 556 F.2d 566 (3rd Cir. 1977); Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366 (7th Cir. 1976), cert. denied, 429 U.S. 830, 97 S.Ct. 91, 50 L.Ed.2d 94 (1976); Norm Thompson Outfitters, Inc. v. General Motors Corp., supra; G & C Merriam Company v. Saalfield, 198 F. 369 (6th Cir. 1912), cert. denied, 243 U.S. 651, 37 S.Ct. 478, 61 L.Ed. 947 (1917); Dresser Industries, Inc. v. Heraeus Engelhard Vacuum, Inc., supra; 3 Callman § 77.1; 1 McCarthy § 15:2. . Union Carbide Corp. v. Ever-Ready, Inc., supra, Kampgrounds of America v. North Delaware A-OK Campgrounds, Inc., supra ; 3 Callman § 77.1; 1 McCarthy § 15:2. . G & C Merriam Co. v. Saalfield, supra, at 373. See," }, { "docid": "11004889", "title": "", "text": "to cause confusion ... or to deceive.” 15 U.S.C. § 1114(l)(a). Westinghouse argues that misuse of original marks (as opposed to copied marks) does not constitute trademark counterfeiting, because original labels are not a “reproduction, counterfeit, copy, or colorable imitation.” As a result, Westinghouse contends instruction 65 was correct in requiring the defendants—in order to establish their affirmative defenses—to prove Westinghouse knew, or should have known, the defendants were photocopying the Westinghouse labels, not just that they were misusing original Westinghouse labels. [3] The original Westinghouse labels are not themselves “counterfeits” in the literal sense. But the aim of section 1114 is broader than the prohibition of “counterfeiting.” The statute was intended “to protect consumers against deceptive designations of the origin of goods,” not just to prevent the duplication of trademarks. International Order of Job’s Daughters v. Lindeburg & Co., 633 F.2d 912, 918 (9th Cir.1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3086, 69 L.Ed.2d 956 (1981); see also Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 329 (6th Cir.) (“The essence of the wrong of trademark infringement is the passing off of the goods of one as those of another.”), cert. denied, 414 U.S. 858, 94 S.Ct. 66, 38 L.Ed.2d 108 (1973). Thus, the important test is whether the practice of the defendant is likely to cause confusion, not whether the defendant duplicated the plaintiff’s mark. Continental Motors Corp. v. Continental Aviation Corp., 375 F.2d 857, 861 (5th Cir.1967) (“Confusion, or the likelihood of confusion ... is the real test of trademark infringement.”); 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 2.03 (3d ed. 1996) (“Whatever route one travels, whether by-trademark infringement or unfair competition, the signs give direction to the same enquiry—whether defendant’s acts are likely to cause confusion.”). Of course, a copy of a mark is no more likely to confuse the public than is the original; in fact, the public is more likely to be deceived by an original mark because it serves as a perfect imitation. In short, the distinction between using a duplication versus using an original has" }, { "docid": "7649505", "title": "", "text": "Hazeltine Research, Inc., 339 U.S. 827, 836, 70 S.Ct. 894, 94 L.Ed. 1312 (1950). The Court reasoned that: Surely the equities of the licensor do not weigh very heavily when they are bal anced against the important public interest in permitting full and free competition in the use of ideas which are in reality a part of the public domain. Licensees may often be the only individuals with enough economic incentive to challenge the patentability of an inventor’s discovery. If they are muzzled, the public may continually be required to pay tribute to would-be monopolists without need or justification. We think it plain that the technical requirements of contract doctrine must give way before the demands of the public interest in the typical situation involving the negotiation of a license after a patent has issued. Lear, 395 U.S. at 670-71, 89 S.Ct. 1902. The Court also refused to enforce a provision of the parties’ license agreement that would have required the licensee to pay royalties until a court held the patent invalid. Id. at 671-74, 89 S.Ct. 1902. It noted that: The parties’ contract, however, is no more controlling on this issue than is the State’s doctrine of estoppel, which is also rooted in contract principles. The decisive question is whether overriding federal policies would be significantly frustrated if licensees could be required to pay royalties during the time they are challenging patent validity in the courts. Id. at 673, 89 S.Ct. 1902. The Lear court thus balanced the policies underlying state contract law against those animating federal patent law in placing limits on the parties’ contractual obligations. In M & M III, the Second Circuit noted that courts had frequently applied the Lear balancing test to trademark licensing contracts. 335 F.3d at 136. It went on to observe that courts have generally precluded licensee challenges to trademarks after weighing the public interest in trademarks against contract principles. Id. (citing MW'S Wire Indus., Inc. v. Cal. Fine Wire Co., 797 F.2d 799, 803 (9th Cir.1986), and Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 329 (6th Cir.1973)). It" }, { "docid": "12846020", "title": "", "text": "claim that the “unauthorized” broadcast would create a “false impression” of sponsorship, the court concluded that it fell “far short of establishing likelihood of confusion” among viewers that the defendant station was the “official” or “authorized” broadcaster of the parade. See id. at 1504-05. Similarly, we do not see how Channel 5’s broadcast could likely confuse viewers that it bore the imprimatur of the BAA. The BAA makes one further argument. It says that, because Channel 5, in earlier years, paid it for a license to use the mark for its broadcasts, Channel 5 is “es-topped” from contesting the mark’s “validity.” The estoppel cases that BAA cites, however, all concern a challenge to the validity of a mark, a challenge absent here. See, e.g., Professional Golfers Ass’n v. Bankers Life & Casualty Co., 514 F.2d 665, 671 (5th Cir.1975) (challenge based on abandonment); Seven-Up Bottling Co. v. Seven-Up Co., 420 F.Supp. 1246, 1251 (E.D.Mo.1976), aff'd, 561 F.2d 1275 (8th Cir.1977) (challenge based on false registration statements); see also 1 J. McCarthy § 18.20 (“trademark licensee is estopped from challenging the validity of the li-censor’s mark”). Regardless, we can find no case that would even prevent a challenge by a prior licensee, based upon post-license facts, after the license has expired. See generally 3 Callman, Unfair Competition, Trademarks & Monopolies § 19.48 (4th ed. 1989). We cannot think of any reason why such a licensee ought to be estopped; or why, a grant of a license should permanently immunize a trademark holder from legal attack. Compare Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969) (estoppel doctrine does not apply to patent licensees) with Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 328-29 (6th Cir.), cert. denied, 414 U.S. 858, 94 S.Ct. 66, 38 L.Ed.2d 108 (1973) (estoppel doctrine does apply to trademark licensees). Finally, we note that amici in support of appellants have raised various questions of state law. Appellants themselves, however, have not raised those questions; consequently, they are not properly before us. See United Parcel Service, Inc. v. Mitchell, 451 U.S." }, { "docid": "5480390", "title": "", "text": "was used in commerce by the defendant without the registrant’s consent and (2) the unauthorized use was likely to cause confusion, or to cause mistake or to deceive.’ ” Optimum Technologies, Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir.2007) (quoting Burger King Corp. v. Mason, 710 F.2d 1480, 1491 (11th Cir.1983)). Ordinarily, trademark infringement cases are predicated on the complaint that the defendant employed a trademark so similar to that of the plaintiff that the public will mistake the defendant’s products for those of the plaintiff. See Burger King, Corp., 710 F.2d at 1492 (citing Exxon Corp. v. Texas Motor Exchange of Houston, Inc., 628 F.2d 500 (5th Cir.1980)). Also, “it is well established that ‘falsely suggesting affiliation with the trademark owner in a manner likely to cause confusion as to source or sponsorship constitutes infringement.’ ” Id. (quoting Professional Golfers Ass’n of America v. Bankers Life & Casualty Co., 514 F.2d 665, 670 (5th Cir.1975)). Thus, a trademark infringement case need not just involve imitation of the registrant’s mark; the unauthorized use of a trademark which has the effect of misleading the public to believe that the user is sponsored or approved by the registrant can constitute infringement. Id. (citing Professional Golfers Ass’n, 514 F.2d at 670). C. Unfair Competition under Lanham Act, 15 U.S.C. § 1125(a) (Count II) The Lanham Act further provides civil liability for any person who uses in commerce any word, term, name, symbol, or any combination thereof, which “is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, ...” 15 U.S.C. § 1125(a). To prove a violation of Section 1125(a), a plaintiff must prove (1) that it had a valid trademark and (2) that the defendant adopted an identical or similar mark such that consumers were likely to confuse the two. Gift of Learning Foundation, Inc. v. TGC, Inc., 329 F.3d 792, 797 (11th Cir.2003)" } ]

[ { "docid": "9381700", "title": "", "text": "contrary to the plain meaning rule,” this court went on to point out that, on its facts, Thom lay outside the purview of Colligan: In any event, the instant case is readily distinguishable from Colligan since Thorn seeks standing not as a consumer, but instead as an investor in a bankrupt corporation controlled by individuals who allegedly conspired to injure that corporation through false advertising. 736 F.2d at 933. Finally, this court addressed the question “whether there are any prudential reasons,” ibid., for denying standing to Thorn: Having concluded that the plain language of the statute gives Thorn, a non-competitor, the right, to sue for harm caused by the false representation of services in commerce, we believe that “the ‘dispositive question’ as to a party’s standing to maintain an action under section 43(a) turns on whether the party ‘has a reasonable interest to be protected against false advertising.’” Smith v. Montoro, 648 F.2d at 608, quoting 1 R. Callmann, Unfair Competition Trademarks and Monopolies, § 18.2(b) at 625 (3d ed. 1967). The Ninth Circuit adopted a prudential requirement that the party seeking standing under section 43(a) must demonstrate a “reasonable interest” to be protected under the statute. This requirement would eliminate frivolous claims and prevent flooding the federal courts with Lanham Act claims contrary to the type envisioned by Congress. In this case, we find that Thom in his capacity as an investor has alleged sufficient direct injury resulting from the false advertisements of the defendants and through these allegations has demonstrat- a protected under section 43(a). Ibid. The “sufficient direct injury” alleged by Thom was that his investment in Florida-Eastern was destroyed by the misconduct of one of Florida-Eastern’s chief competitors. Thus, this court’s determination that the plaintiff in Thom had “a reasonable interest to be protected under section 43(a)” permitted a false advertising suit by one who, while not in his own person a competitor of the alleged rogue enterprise, was, nonetheless, so situated that he could quite reasonably be regarded as a surrogate for such competitor. No decision of this court since Thom has broadened the class" } ]

[ { "docid": "9381715", "title": "", "text": "be charged with identifying false advertising, ameliorating its malign consequences, and, in the long run, shrinking its dominion. State courts have substantial authority in this field by virtue of judge-made misrepresentation law, and some state legislatures have, through such legislation as the Uniform Deceptive Trade Practices Act, undertaken to widen that authority. Congress conferred a measure of public enforcement authority on the Federal Trade Commission and, through section 43(a) of the Lanham Act, has vested in the federal courts jurisdiction to entertain certain categories of private law suits predicated on claims of false advertising. Given this commitment of institutional resources to the cause of consumers injured by false advertising, if Congress had intended to make the additional commitment involved in recognizing a federal tort of misrepresentation and in bestowing access to federal fora without regard to the amount in issue, we are confident that the legislative history of the Lan-ham Act would have borne clear witness to that commitment. Because we find no clear indication of such an unusual commitment and because we are satisfied that section 43(a) had an important, though narrower and quite distinct purpose, we join the Second Circuit in holding that Congress, when authorizing federal courts to deal with claims of false advertising, did not contemplate that federal courts should entertain claims brought by consumers. Some have suggested that the Federal Trade Commission has not been a sufficiently effective watch-dog of consumer interests, and that the protections afforded consumers in state courts are inadequate. . Such seemed to be the view of the House Judiciary Committee in 1988, when it proposed amending section 43(a) expressly to include consumers among those entitled to sue. H.R.Rep. 100-1028 (100th Cong.2d Sess., 1988) 13-14. However, that view did not prevail in Congress at that time. In determining whether Section 43(a) should be enlarged in the manner'proposed, Congress needs to consider what other tasks the federal courts now perform and whether some of those tasks — tasks that would otherwise compete with Section 43(a) claims for federal judicial attention — should be withdrawn from the cognizance of federal courts. There is" }, { "docid": "5353884", "title": "", "text": "out the concept of “reasonable interest” by quoting extensively from the Callmann treatise relied upon in Thom in formulating our “reasonable interest” requirement: The language of the Lanham Act ... states that the wrongdoer in cases of false advertising is “liable to a civil action ... by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.” Indeed the statute goes further in recognizing that the plaintiff need not even be “in the same line of business and in competition with defendant”; it will be sufficient, in the case of a false designation of origin, that the plaintiff is “doing business in the locality falsely indicated” and in the case of a false description of goods of services, that he believes he is or is likely to be damaged, because, for instance, the parties are doing business on different economic levels. The dispositive question should be whether plaintiff has a reasonable interest to be protected against false advertising. Serbin, 11 F.3d at 1176-77 (emphasis added). The emphasized language, quoted favorably in Serbin, implies that parties who are not in direct competition (because they are “doing business on different economic levels”) nevertheless may have standing to sue if they have a “reasonable interest to be protected against false advertising.” This language, implicitly adopted in Serbin, exists in some tension with the District Court’s holding that only direct competitors or their surrogates have standing. Moreover, the District Court’s holding conflicts with cases from other courts of appeals that confer standing upon parties who are not direct competitors or “surrogates” for the same. See generally 4 Thomas J. McCarthy, McCarthy on Trademarks and Unfair Competition § 27:32 at 27-51 (4th ed.1996) (“With the possible exception of the Ninth Circuit, the courts have held that the plaintiff and defendant need not be in direct competition with each other for plaintiff to have standing to sue ... under § 43(a).”); see also PPX Enters., Inc. v. Audiofidelity, Inc., 746 F.2d 120 (2d Cir.1984) (recognizing standing of owner of royalty streams from music" }, { "docid": "9381714", "title": "", "text": "which was taken out of H.R. 5372 which was reported by the Judiciary Committee and which is not found in this compromise, it would have provided consumers with standing to sue under section 43(a) of the Lanham Act. This provision, which had not been studied or evaluated by anyone for its long-term effects on Federal unfair competition law, would have radically altered the nature of the Lanham Act and would have had the likely effect of turning the Federal courts into a small claims court. 134 Cong.Rec. 31854 (Oct. 19, 1988). With matters in this posture, the verdict must be that rendered by Professor McCarthy, who characterizes Congressman Kasten-meier’s statement as “only an optimistic opinion by a representative whose proposal was defeated in a House-Senate compromise.” 2 McCarthy, supra, § 27.04[5] at p. 27-55 (3d ed. 1992). Conclusion The question of policy that underlies these appeals is not whether false advertising is a bad thing. It is, and consumers are victimized by it. The question of policy is what institution, or set of institutions, should be charged with identifying false advertising, ameliorating its malign consequences, and, in the long run, shrinking its dominion. State courts have substantial authority in this field by virtue of judge-made misrepresentation law, and some state legislatures have, through such legislation as the Uniform Deceptive Trade Practices Act, undertaken to widen that authority. Congress conferred a measure of public enforcement authority on the Federal Trade Commission and, through section 43(a) of the Lanham Act, has vested in the federal courts jurisdiction to entertain certain categories of private law suits predicated on claims of false advertising. Given this commitment of institutional resources to the cause of consumers injured by false advertising, if Congress had intended to make the additional commitment involved in recognizing a federal tort of misrepresentation and in bestowing access to federal fora without regard to the amount in issue, we are confident that the legislative history of the Lan-ham Act would have borne clear witness to that commitment. Because we find no clear indication of such an unusual commitment and because we are satisfied" }, { "docid": "19208560", "title": "", "text": "has not alleged the necessary competitive harm to have standing to bring a Lanham Act claim. Contrary to Plaintiffs’ argument, the Lanham Act does not require that the parties be competitors. In Thom, the Third Circuit specifically held that the fact that a claimant is not a competitor to the adverse party does not preclude prudential standing to bring a Lanham Act claim. 736 F.2d at 933. In that case, the plaintiff, the president, CEO, director, and forty-five-percent shareholder in a trucking company, brought a Lanham Act claim against a competing company and its officers and directors for false advertising that allegedly drove plaintiffs company into bankruptcy. Id. at 930-31. Although the Third Circuit found that the plaintiff as an individual investor in the harmed company was not a direct competitor of the competing company, it held that the plaintiff had a sufficiently direct injury to fall within the class of persons to be protected by the Lanham Act. Id. at 933. However the Third Circuit in Serbin v. Ziebart Int’l Corp., Inc., 11 F.3d 1163, 1179 (3d Cir.1993) failed to extend Lanham Act standing to consumers. Subsequently in Conte Brothers, the Third Circuit reiterated that a non-competitor may have prudential standing under the Lanham Act in certain circumstances. 165 F.3d at 234. However, in that case, the Court found that the plaintiffs, a nationwide class of retailers who sold a product that competed with the defendant manufacturer’s product, did not have prudential standing to assert a Lanham Act claim. The Court emphasized that “the focus of the Lanham Act is on commercial interests that have been harmed by a competitor’s false advertising and in securing] to the business community the advantages of reputation and goodwill by preventing their diversion from those who have created them to those who have not.” Id. (internal quotations and emphasis omitted). Based on this, the Court found that the plaintiffs, as retailers, had alleged a commercial interest but had not alleged an impact on their ability to compete with the defendant, a manufacturer, necessary to allege the required competitive harm. Id. Nor had the" }, { "docid": "19208559", "title": "", "text": "test to a false designation of origin claim). The Third Circuit and district courts in this Circuit have continued to follow the five-factor test since Conte Brothers, with no one factor given determinative weight. See Knit With v. Knitting Fever, Inc., 2008 WL 5381349, at *10 (E.D.Pa. Dec. 18, 2008) (collecting cases). a. Nature of the Injury In the instant Motion, Plaintiffs claim that Defendant has failed to meet the first-prong of the Conte Brothers test, the nature of the injury. Under this factor, the Court must consider whether Defendant’s alleged injury is of the type that Congress sought to redress when providing a private remedy under the Lanham Act. Knit With, 2008 WL 5381349 at *10. “The Lanham Act is primarily intended to protect commercial interests and provides a private remedy to a commercial plaintiff who meets the burden of proving that its commercial interests have been harmed by a competitor’s false advertising.” Nevyas, 309 F.Supp.2d at 678 (citing Sandoz Pharmaceuticals v. Richardson-Vicks, Inc., 902 F.2d 222, 230 (3d Cir.1990)). Plaintiffs claim that Defendant has not alleged the necessary competitive harm to have standing to bring a Lanham Act claim. Contrary to Plaintiffs’ argument, the Lanham Act does not require that the parties be competitors. In Thom, the Third Circuit specifically held that the fact that a claimant is not a competitor to the adverse party does not preclude prudential standing to bring a Lanham Act claim. 736 F.2d at 933. In that case, the plaintiff, the president, CEO, director, and forty-five-percent shareholder in a trucking company, brought a Lanham Act claim against a competing company and its officers and directors for false advertising that allegedly drove plaintiffs company into bankruptcy. Id. at 930-31. Although the Third Circuit found that the plaintiff as an individual investor in the harmed company was not a direct competitor of the competing company, it held that the plaintiff had a sufficiently direct injury to fall within the class of persons to be protected by the Lanham Act. Id. at 933. However the Third Circuit in Serbin v. Ziebart Int’l Corp., Inc., 11 F.3d" }, { "docid": "5353880", "title": "", "text": "U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (“purpose of the Lanham Act was to codify and unify the common law of unfair competition and trademark protection”); see also Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989) (“law of unfair competition has its roots in the common-law tort of deceit”); see generally 1 J.T. McCarthy, McCarthy on Trademarks and Unfair Competition § 5:2 (4th ed.1996) (discussing common-law origins of Lanham Act). There is no indication that Congress intended in any of the Lanham Act’s statutory precursors, or in the Lanham Act itself for that matter, to abrogate the common law limitations on standing to sue. Cf. Associated General, 459 U.S. at 531-34, 103 S.Ct. 897 (describing congressional intent to incorporate common-law principles constraining class of plaintiffs entitled to sue under Clayton Act). In light of the text of § 43(a), other textual provisions defining the purpose of the Lan-ham Act, the Lanham Act’s legislative history and its common-law origins, we hold that Congress did not intend to abrogate prudential limitations on the standing of plaintiffs to bring suit under § 43(a). C. Our previous opinions analyzing standing-under § 43(a) have assumed, without undergoing the analysis prescribed by Supreme Court cases such as Bennett, that prudential standing doctrine limits the class of plaintiffs entitled to bring suit. In Thorn v. Reliance Van Co., 736 F.2d 929 (3d Cir.1984), we first addressed § 43(a)’s standing requirements. The issue there was whether an individual investor in a bankrupt company had standing to sue for allegedly false advertisements by a competitor of the bankrupt company. Thorn, 736 F.2d at 931. We looked to § 43(a)’s plain language and concluded that “it is this court’s function to grant standing to Thorn if he is a person who believes that he has been damaged by [the defendant’s] use of false representations.” Id. at 932. Because the investor alleged with specificity both “a section 43(a) violation and a resulting injury,” we concluded that “the mere fact that Thorn [was] not a competitor of [the defendant] d[id]" }, { "docid": "5353883", "title": "", "text": "v. Ziebart Int’l Corp., 11 F.3d 1163 (3d Cir.1993). In that case, the issue was whether a consumer whose purchase was allegedly influenced by false advertising had standing under the Lanham Act to bring a suit for damages. We held that consumers lack standing to bring false advertising claims under the Lanham Act, and we reaffirmed the principle announced in Thom that, the plain language of § 43(a) notwithstanding, prudential concerns dictate that a sufficiently direct injury be alleged before standing to sue is recognized: The “sufficient direct injury” alleged by Thorn was that his investment in Florida-Eastern was destroyed by the misconduct of one of Florida-Eastern’s chief competitors. Thus, this Court’s determination that the plaintiff in Thorn had a “reasonable interest to be protected under section 43(a)’.’ permitted a false advertising suit by one who, while not in his owm person a competitor of the alleged rogue enterprise, was, nonetheless, so situated that he could quite reasonably be regarded as a surrogate for such competitor. Serbin, 11 F.3d at 1175 (emphasis added). We fleshed out the concept of “reasonable interest” by quoting extensively from the Callmann treatise relied upon in Thom in formulating our “reasonable interest” requirement: The language of the Lanham Act ... states that the wrongdoer in cases of false advertising is “liable to a civil action ... by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.” Indeed the statute goes further in recognizing that the plaintiff need not even be “in the same line of business and in competition with defendant”; it will be sufficient, in the case of a false designation of origin, that the plaintiff is “doing business in the locality falsely indicated” and in the case of a false description of goods of services, that he believes he is or is likely to be damaged, because, for instance, the parties are doing business on different economic levels. The dispositive question should be whether plaintiff has a reasonable interest to be protected against false advertising. Serbin, 11 F.3d at" }, { "docid": "5353882", "title": "", "text": "not, in and of itself, preclude him from bringing suit under section 43(a).” Id. at 933. Though we thus concluded that the plaintiff had satisfied constitutional standing prerequisites, we went on to consider whether “there [we]re any prudential reasons which support a judicial determination that Thorn [was] without standing....” Id. We defined the “dispositive question” of a party’s prudential standing as “whether the party has a reasonable interest to be protected against false advertising.” Id. (quoting Smith v. Montoro, 648 F.2d 602, 608 (9th Cir.1981)) (quoting 1 R. Callmann, Unfair Competition, Trademarks and Monopolies, § 18.2(b) at 625 (3d ed.1967)). While we never precisely defined the critical term “reasonable interest,” we noted that Thorn’s allegations of injury — notably the loss of his investment due to the defendant’s false ad- vertísing campaign — were “sufficiently] direct” to satisfy any prudential standing considerations. Id. Our subsequent decisions have carried forward this prudential “reasonable interest” requirement and have grappled with defining the term with greater precision. We revisited the issue of standing under § 43(a) in Serbin v. Ziebart Int’l Corp., 11 F.3d 1163 (3d Cir.1993). In that case, the issue was whether a consumer whose purchase was allegedly influenced by false advertising had standing under the Lanham Act to bring a suit for damages. We held that consumers lack standing to bring false advertising claims under the Lanham Act, and we reaffirmed the principle announced in Thom that, the plain language of § 43(a) notwithstanding, prudential concerns dictate that a sufficiently direct injury be alleged before standing to sue is recognized: The “sufficient direct injury” alleged by Thorn was that his investment in Florida-Eastern was destroyed by the misconduct of one of Florida-Eastern’s chief competitors. Thus, this Court’s determination that the plaintiff in Thorn had a “reasonable interest to be protected under section 43(a)’.’ permitted a false advertising suit by one who, while not in his owm person a competitor of the alleged rogue enterprise, was, nonetheless, so situated that he could quite reasonably be regarded as a surrogate for such competitor. Serbin, 11 F.3d at 1175 (emphasis added). We fleshed" }, { "docid": "5353885", "title": "", "text": "1176-77 (emphasis added). The emphasized language, quoted favorably in Serbin, implies that parties who are not in direct competition (because they are “doing business on different economic levels”) nevertheless may have standing to sue if they have a “reasonable interest to be protected against false advertising.” This language, implicitly adopted in Serbin, exists in some tension with the District Court’s holding that only direct competitors or their surrogates have standing. Moreover, the District Court’s holding conflicts with cases from other courts of appeals that confer standing upon parties who are not direct competitors or “surrogates” for the same. See generally 4 Thomas J. McCarthy, McCarthy on Trademarks and Unfair Competition § 27:32 at 27-51 (4th ed.1996) (“With the possible exception of the Ninth Circuit, the courts have held that the plaintiff and defendant need not be in direct competition with each other for plaintiff to have standing to sue ... under § 43(a).”); see also PPX Enters., Inc. v. Audiofidelity, Inc., 746 F.2d 120 (2d Cir.1984) (recognizing standing of owner of royalty streams from music recording to bring action against distributor of falsely labeled record albums); Camel Hair & Cashmere Institute, Inc. v. Associated Dry Goods Corp., 799 F.2d 6 (1st Cir.1986) (trade association of makers of cashmere fibers and fabrics, but not of finished coats, held to have standing to sue for a preliminary injunction against retailers of coats falsely labeled as containing more cashmere than they had). For this reason, we do not adopt the standard employed by the District Court in this case as our test for standing under § 43(a). As discussed earlier, there exists no single overarching test for determining the standing to sue under a given statute. With respect to § 43(a) of the Lanham Act, the Ninth Circuit jurisprudence in this area suggests one alternative. Under Ninth Circuit law, the class of persons entitled to bring suit under § 43(a) depends on what type of Lan-ham Act violation is being alleged. For violations of the “false association” prong of § 43(a), any party with a “commercial interest in the product wrongfully identified,” whether" }, { "docid": "9381698", "title": "", "text": "competitor. trucking company controlled by certain of plaintiffs own fellow directors, Thorn sued in a federal district court, relying on a claim under Section 43(a) as the basis for federal jurisdiction and also pleading various state law claims. The district court, noting that the trustee in bankruptcy had declined to bring suit, dismissed Thorn’s Section 43(a) suit for lack of standing. This court reversed: The traditional plaintiff under section 43(a) has been a competitor who was injured in his line of business as a result of the false advertising.... Thorn, however, in his capacity as an officer, director and shareholder of Florida-Eastern was not a competitor of Reliance. The question then is whether Thorn as an investor falls within the class of non-competitors entitled to bring an action_ Under a plain meaning interpretation of section 43(a) it is this court’s function to grant standing to Thorn if he is a person who believes that he has been damaged by Reliance’s use of false representations ... In Colligan, the Second Circuit held that consumers could not maintain a class action under section 43(a) of the Lanham Act. 442 F.2d at 689. Although the court acknowledged that a plain meaning interpretation of that section would permit consumers to sue under the statute, the court reasoned that congressional intent, as evidenced in section 45 of the Act, limited protection to interests of “a purely commercial class against unscrupulous commercial conduct.” Id. at 692. The primary reason articulated for denying consumer standing was that an expansive reading would further flood the already overcrowded federal courts. Id. at 693. We reject the Colligan decision to the extent that it is contrary to the plain meaning rule as set out by the Supreme Court in Caminetti v. United States, 242 U.S. [470] at 485, 37 S.Ct. [192] at 194 [61 L.Ed. 442 (1917) ] and Aloha Airlines, Inc. v. Director of Taxation of Hawaii, [464] U.S. [7] at [11-12], 104 S.Ct. [291] at 294 [78 L.Ed.2d 10 (1983) ]. 736 F.2d at 931-32 (footnotes omitted). Having “rejected] the Colligan decision to the extent that it is" }, { "docid": "9381704", "title": "", "text": "interpretation of section 43(a), it is this court’s function to grant standing to Thom if he is a person who believes that he has been damaged by Reliance’s use of false representations.” 736 F.2d at 932. But our analysis did not stop there: Having concluded that the plain language of the statute gives Thorn, a non-competitor, the right to sue for harm caused by the false representation of services in commerce, we believe that “the ‘dispositive question’ as to a party’s standing under section 43(a) turns on whether the party ‘has a reasonable interest to be protected against false advertising.’ ” Smith v. Montoro, 648 F.2d at 609, quoting R. Call-mann, Unfair Competition, Trademarks and Monopolies, § 18.2(b) at 625 (3d ed. 1967).... In this case, we find that Thorn in his capacity as an investor has alleged sufficient direct injury resulting from the false advertisements of the defendants and through these allegations has demonstrated a reasonable interest to be protected against under section 43(a). 736 F.2d at 933. In Thom, in short, we expressly subscribed to the Ninth Circuit’s Smith v. Montoro pronouncement that the “ ‘dispositive question,’ ” in determining who may bring a false advertising claim under Section 43(a), is whether a putative plaintiff “ ‘has a reasonable interest to be protected against false advertising.’ ” More to the point, we noted that in framing the “ ‘dispositive question’ ” the opinion in Smith v. Montoro was quoting Section 18.2(b) of the third edition of the Callmann treatise. What the Callmann treatise said, in the sentence excerpted in Smith v. Montoro and in turn excerpted in Thom, was as follows: The dispositive question should be whether plaintiff has a reasonable interest to be protected against false advertising. 1 R. Callmann, Unfair Competition, Trademarks■ and Monopolies, § 18.2(b) at p. 625 (3d ed. 1967) (footnote omitted). A reading of the entire paragraph in which the quoted sentence appears sheds strong light on what Callmann meant by “a reasonable interest to be protected against false advertising.” The strong light shed by that paragraph appears “dispositive” with respect to the" }, { "docid": "16814508", "title": "", "text": "Bailey. This action followed. Thorn brought suit against Welsh, Weatherley, Bailey, O’Neal and Reliance alleging both state law breaches of contract and fiduciary duties, and a violation of section 43(a) of the Lanham Act. Specifically, Thorn alleged (1) that Reliance, under the direction of Welsh, entered into direct competition with Florida-Eastern before obtaining permission from the Interstate Commerce Commission to ship goods to Florida; (2) that Reliance falsely advertised reduced rates in the yellow pages and (3) that Reliance used a Florida-Eastern slogan in these ads. Thorn maintains that the false advertising caused injury to Florida-Eastern and led to the company’s bankruptcy. • He also maintains that, as a result of these ads, he suffered harm individually with regard to his investment. The trustee in bankruptcy, however, refused to bring an action on behalf of Florida-Eastern, and therefore the district court dismissed the suit because it found that Thorn had “no interest in [Florida-Eastern’s] rights under the Lanham Act____” Appendix (“App.”) at 214. II. The sole issue addressed on this appeal is whether Thorn as an individual investor has standing to maintain an action under section 43(a) of the Lanham Act. A. Section 43(a) of the Lanham Act provides that an action may be brought by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation. 15 U.S.C. § 1125(a). Section 43(a), oh its face, recognizes two distinct classes of persons entitled to sue: (1) competitors — those doing business in the locality, and (2) non-competitors— those who believe they are somehow damaged by the false representations. The traditional plaintiff under section 43(a) has been a competitor who was injured in his line of business as a result of the false advertising. Spring Mills, Inc. v. Ultracashmere House, Ltd., 689 F.2d 1127 (2d Cir.1982); Mortellito v. Nina of California, Inc., 335 F.Supp. 1288 (S.D.N.Y.1972); Gold Seal Co. v. Weeks, 129 F.Supp. 928" }, { "docid": "21286541", "title": "", "text": "aspects of Section 43(a)—as originally framed in 1946 and as revised in 1988—were calculated to protect competitors or others with a comparably integral commercial interest but did not include ultimate consumers within the scope of the protected interest.” Serbin v. Ziebart Int’l Corp., 11 F.3d 1163, 1165 (3d Cir.1993). The Second Circuit has limited standing to assert a Section 43(a) claim to a “purely commercial class” of plaintiffs, specifically excluding consumers from bringing false representation claims\" under the Lanham Act. Colligan v. Activities Club of New York, Ltd., 442 F.2d 686, 692 (2d Cir.), cert. denied, 404 U.S. 1004, 92 S.Ct. 559, 30 L.Ed.2d 557 (1971). Although a Section 43(a) plaintiff need not be a direct competitor, it is apparent that, at a minimum, standing to bring a Section 43(a) claim requires the potential for a commercial injury. Berni v. International Gourmet Restaurants of America, Inc., 838 F.2d 642, 648 (2d Cir.1988) (citation omitted). While standing is granted for injury to “purely commercial” interests, courts also look to the nature of the false representations to limit the availability of remedies available under the Act. Typically, Section 43(a) claims are “limited to false advertising as that term is generally understood.” Alfred Dunhill Ltd. v. Interstate Cigar Co., 499 F.2d 232, 237 (2d Cir.1974) (citation omitted). “In order for representations to constitute ‘commercial advertising or promotion’ under Section 43(a)(1)(B), they must be: (1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or services---- [and] (4) must be disseminated sufficiently to the relevant purchasing public to constitute ‘advertising’ or ‘promotion’ within that industry.” Gordon & Breach Science Publishers S.A v. American Inst. of Physics, 859 F.Supp. 1521, 1535-36 (S.D.N.Y.1994). Clearly, this ease does not fit neatly into the Lanham Act. The Court has found no cases dealing with the standing issue as it relates specifically to the “original equipment manufacturer” setting. In one sense, Omega appears to fit into that purely commercial class of plaintiffs who have standing to sue under the Lanham Act, alleging at least" }, { "docid": "5353881", "title": "", "text": "not intend to abrogate prudential limitations on the standing of plaintiffs to bring suit under § 43(a). C. Our previous opinions analyzing standing-under § 43(a) have assumed, without undergoing the analysis prescribed by Supreme Court cases such as Bennett, that prudential standing doctrine limits the class of plaintiffs entitled to bring suit. In Thorn v. Reliance Van Co., 736 F.2d 929 (3d Cir.1984), we first addressed § 43(a)’s standing requirements. The issue there was whether an individual investor in a bankrupt company had standing to sue for allegedly false advertisements by a competitor of the bankrupt company. Thorn, 736 F.2d at 931. We looked to § 43(a)’s plain language and concluded that “it is this court’s function to grant standing to Thorn if he is a person who believes that he has been damaged by [the defendant’s] use of false representations.” Id. at 932. Because the investor alleged with specificity both “a section 43(a) violation and a resulting injury,” we concluded that “the mere fact that Thorn [was] not a competitor of [the defendant] d[id] not, in and of itself, preclude him from bringing suit under section 43(a).” Id. at 933. Though we thus concluded that the plaintiff had satisfied constitutional standing prerequisites, we went on to consider whether “there [we]re any prudential reasons which support a judicial determination that Thorn [was] without standing....” Id. We defined the “dispositive question” of a party’s prudential standing as “whether the party has a reasonable interest to be protected against false advertising.” Id. (quoting Smith v. Montoro, 648 F.2d 602, 608 (9th Cir.1981)) (quoting 1 R. Callmann, Unfair Competition, Trademarks and Monopolies, § 18.2(b) at 625 (3d ed.1967)). While we never precisely defined the critical term “reasonable interest,” we noted that Thorn’s allegations of injury — notably the loss of his investment due to the defendant’s false ad- vertísing campaign — were “sufficiently] direct” to satisfy any prudential standing considerations. Id. Our subsequent decisions have carried forward this prudential “reasonable interest” requirement and have grappled with defining the term with greater precision. We revisited the issue of standing under § 43(a) in Serbin" }, { "docid": "9381699", "title": "", "text": "maintain a class action under section 43(a) of the Lanham Act. 442 F.2d at 689. Although the court acknowledged that a plain meaning interpretation of that section would permit consumers to sue under the statute, the court reasoned that congressional intent, as evidenced in section 45 of the Act, limited protection to interests of “a purely commercial class against unscrupulous commercial conduct.” Id. at 692. The primary reason articulated for denying consumer standing was that an expansive reading would further flood the already overcrowded federal courts. Id. at 693. We reject the Colligan decision to the extent that it is contrary to the plain meaning rule as set out by the Supreme Court in Caminetti v. United States, 242 U.S. [470] at 485, 37 S.Ct. [192] at 194 [61 L.Ed. 442 (1917) ] and Aloha Airlines, Inc. v. Director of Taxation of Hawaii, [464] U.S. [7] at [11-12], 104 S.Ct. [291] at 294 [78 L.Ed.2d 10 (1983) ]. 736 F.2d at 931-32 (footnotes omitted). Having “rejected] the Colligan decision to the extent that it is contrary to the plain meaning rule,” this court went on to point out that, on its facts, Thom lay outside the purview of Colligan: In any event, the instant case is readily distinguishable from Colligan since Thorn seeks standing not as a consumer, but instead as an investor in a bankrupt corporation controlled by individuals who allegedly conspired to injure that corporation through false advertising. 736 F.2d at 933. Finally, this court addressed the question “whether there are any prudential reasons,” ibid., for denying standing to Thorn: Having concluded that the plain language of the statute gives Thorn, a non-competitor, the right, to sue for harm caused by the false representation of services in commerce, we believe that “the ‘dispositive question’ as to a party’s standing to maintain an action under section 43(a) turns on whether the party ‘has a reasonable interest to be protected against false advertising.’” Smith v. Montoro, 648 F.2d at 608, quoting 1 R. Callmann, Unfair Competition Trademarks and Monopolies, § 18.2(b) at 625 (3d ed. 1967). The Ninth Circuit adopted" }, { "docid": "9381702", "title": "", "text": "of false advertising claims cognizable under Section 43(a). One case—Ditri v. Coldwell Banker, 954 F.2d 869 (3d Cir.1992) — appeared to present the question whether a purchaser of professional services could sue under section 43(a). “... [Pjlaintiffs contended] that they [had] standing, as non-competitors, to assert a claim under section 43(a) based on the plain meaning analysis of that section expounded in Thom ...” Id. at 872. However, concluding that the representations complained of did not constitute false advertising within the meaning of the statute, the court in Ditri found it “unnecessary to decide the so-called standing issue which would, at best, only involve prudential standing.” Ibid. Our two other recent section 43(a) cases—Sandoz Pharmaceuticals v. Richardson-Vicks, Inc., 902 F.2d 222 (3d Cir.1990), and U.S. Healthcare v. Blue Cross of Gr. Philadelphia, 898 F.2d 914 (3d Cir.1990) — involved litigants who were direct competitors. In Sandoz, we observed: The Lanham Act is primarily intended to protect commercial interests. See Colligan v. Activities Club of New York, Ltd., 442 F.2d 686, 692 (2d Cir.), cert. denied, 404 U.S. 1004, 92 S.Ct. 559, 30 L.Ed.2d 557 (1971). A competitor in a Lanham Act suit does not act as a ‘“vicarious avenger’ of the public’s right to be protected against false advertising.” American Home Prods. Corp. v. Johnson & Johnson, 672 F.Supp. 135, 145 (S.D.N.Y.1987). Instead, the statute provides a private remedy to a commercial plaintiff who meets the burden of proving that its commercial interests have been harmed by a competitor’s false advertising. 902 F.2d at 230. III. A. In arguing that Section 43(a) should be read as protecting consumers against false advertising, appellants invoke the “plain meaning” canon of statutory construction. See Smith v. Fidelity Consumer Discount Co., 898 F.2d 907, 909-10 (3d Cir.1990). Appellants argue that the statutory description of those entitled to sue — “any person who believes that he is or is likely to be damaged” — is sufficiently capacious to include consumers. And appellants stress that “plain meaning” informed this court’s opinion in Thom. It is the case that in Thom we said: “Under a plain meaning" }, { "docid": "16814514", "title": "", "text": "but instead as an investor in a bankrupt corporation controlled by individuals who allegedly conspired to injure that corporation through false advertising. We thus find that the mere fact that Thorn is not a competitor of Reliance does not, in and of itself, preclude him from bringing suit under section 43(a). We now turn to whether there are any prudential reasons which support a judicial determination that Thorn is without standing in the instant matter. B. Having concluded that the plain language of the statute gives Thorn, a non-competitor, the right to sue for harm caused by the false representation of services in commerce, we believe that “the ‘dispositive question’ as to a party’s standing to maintain an action under section 43(a) turns on whether the party ‘has a reasonable interest to be protected against false advertising.’ ” Smith v. Montoro, 648 F.2d at 608, quoting 1 R. Callman, Unfair Competition Trademarks and Monopolies, § 18.2(b) at 625 (3d ed. 1967). The Ninth Circuit adopted a prudential requirement that the party seeking standing under section 43(a) must demonstrate a “reasonable interest” to be protected under the statute. This requirement would eliminate frivolous claims and prevent flooding the federal courts with Lanham Act claims contrary to the type envisioned by Congress. In this case, we find that Thorn in his capacity as an investor has alleged sufficient direct injury resulting from the false advertisements of the defendants and through these allegations has demonstrated a reasonable interest to be protected under section 43(a). Thorn’s allegations claim that he transferred as capital his successful booking business to Florida-Eastern only to watch it decline and end in bankruptcy. Furthermore, he alleges that his investment losses tyere the result of false representations made by Reliance. Finally, he asserts that his status as a director and a forty-five percent shareholder of Florida-Eastern place him within a forseeable class of persons likely to be injured by the types of false representations alleged in this case. We therefore conclude that Thorn’s allegations are sufficient to establish a reasonable interest protected by section 43(a), and that he has standing" }, { "docid": "9381703", "title": "", "text": "404 U.S. 1004, 92 S.Ct. 559, 30 L.Ed.2d 557 (1971). A competitor in a Lanham Act suit does not act as a ‘“vicarious avenger’ of the public’s right to be protected against false advertising.” American Home Prods. Corp. v. Johnson & Johnson, 672 F.Supp. 135, 145 (S.D.N.Y.1987). Instead, the statute provides a private remedy to a commercial plaintiff who meets the burden of proving that its commercial interests have been harmed by a competitor’s false advertising. 902 F.2d at 230. III. A. In arguing that Section 43(a) should be read as protecting consumers against false advertising, appellants invoke the “plain meaning” canon of statutory construction. See Smith v. Fidelity Consumer Discount Co., 898 F.2d 907, 909-10 (3d Cir.1990). Appellants argue that the statutory description of those entitled to sue — “any person who believes that he is or is likely to be damaged” — is sufficiently capacious to include consumers. And appellants stress that “plain meaning” informed this court’s opinion in Thom. It is the case that in Thom we said: “Under a plain meaning interpretation of section 43(a), it is this court’s function to grant standing to Thom if he is a person who believes that he has been damaged by Reliance’s use of false representations.” 736 F.2d at 932. But our analysis did not stop there: Having concluded that the plain language of the statute gives Thorn, a non-competitor, the right to sue for harm caused by the false representation of services in commerce, we believe that “the ‘dispositive question’ as to a party’s standing under section 43(a) turns on whether the party ‘has a reasonable interest to be protected against false advertising.’ ” Smith v. Montoro, 648 F.2d at 609, quoting R. Call-mann, Unfair Competition, Trademarks and Monopolies, § 18.2(b) at 625 (3d ed. 1967).... In this case, we find that Thorn in his capacity as an investor has alleged sufficient direct injury resulting from the false advertisements of the defendants and through these allegations has demonstrated a reasonable interest to be protected against under section 43(a). 736 F.2d at 933. In Thom, in short, we expressly" }, { "docid": "23507209", "title": "", "text": "the na ture, characteristics, qualities, or geographic origin of his or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act. 15 U.S.C. § 1125(a)(1)(B) (emphasis added). This section provides protection against a “myriad of deceptive commercial practices,” including false advertising or promotion. Resource Developers v. Statue of Liberty-Ellis Island Found., 926 F.2d 134, 139 (2d Cir.1991). Section 43(a) of the Lanham Act has been characterized as a remedial statute that should be broadly construed. See Gordon & Breach Science Publishers v. American Inst. of Physics, 859 F.Supp. 1521, 1532 (S.D.N.Y.1994) (citing cases). Some courts have suggested that Congress passed the Lanham Act in order to protect consumers generally. See, e.g., Wojnarowicz v. American Family Ass’n, 745 F.Supp. 130, 141 (S.D.N.Y.1990). However, most courts that have addressed the issue agree that in light of the pro-competitive purpose language found in § 45, “consumers fall outside the range of ‘reasonable interests’ contemplated as protected by the false advertising prong of Section 43(a) of the Lanham Act.” Serbin v. Ziebart Intern. Corp., 11 F.3d 1163, 1177 (3d Cir.1993). These courts have interpreted the primarily pro-competitive purpose of § 43(a) to mean that “[s]uit may be brought only by a commercial plaintiff who can prove that its interests have been harmed by a competitor’s false advertising.” Gordon & Breach, 859 F.Supp. at 1533 (citing cases); see also Serbin, 11 F.3d at 1177 (holding that only commercial plaintiffs or consumers with some discernible competitive injury have standing to sue under the Act). There is no dispute in this case that Seven-Up is a commercial plaintiff who alleges an injury caused by a competitor. Rather, in determining whether Seven-Up has properly stated a claim under the Lanham Act, our focus is solely on the issue of whether the Coca-Cola presentation falls within the meaning of “commercial advertisement or promotion” under the Act. The Lanham Act does not define either “advertising” or “promotion.” Nor is the Act’s legislative history helpful regarding this issue; it addresses" }, { "docid": "16814513", "title": "", "text": "557 (1971). In Colligan, the Second Circuit held that consumers could not maintain a class action under section 43(a) of the Lanham Act. 442 F.2d at 689. Although the court acknowledged that a plain meaning interpretation of that section would permit consumers to sue under the statute, the court reasoned that congressional intent, as evidenced in section 45 of the Act, limited protection to interests of “a purely commercial class against unscrupulous commercial conduct.” Id. at 692. The primary reason articulated for denying consumer standing was that an expansive reading would further flood the already overcrowded federal courts. Id. at 693. We reject the Colligan decision to the extent that it is contrary to the plain meaning rule as set out by the Supreme Court in Caminetti v. United States, 242 U.S. at 485, 37 S.Ct. at 194, and Aloha Airlines, Inc. v. Director of Taxation of Hawaii, — U.S. at —, 104 S.Ct. at 294. In any event, the instant ease is readily distinguishable from Colligan since Thorn seeks standing not as a consumer, but instead as an investor in a bankrupt corporation controlled by individuals who allegedly conspired to injure that corporation through false advertising. We thus find that the mere fact that Thorn is not a competitor of Reliance does not, in and of itself, preclude him from bringing suit under section 43(a). We now turn to whether there are any prudential reasons which support a judicial determination that Thorn is without standing in the instant matter. B. Having concluded that the plain language of the statute gives Thorn, a non-competitor, the right to sue for harm caused by the false representation of services in commerce, we believe that “the ‘dispositive question’ as to a party’s standing to maintain an action under section 43(a) turns on whether the party ‘has a reasonable interest to be protected against false advertising.’ ” Smith v. Montoro, 648 F.2d at 608, quoting 1 R. Callman, Unfair Competition Trademarks and Monopolies, § 18.2(b) at 625 (3d ed. 1967). The Ninth Circuit adopted a prudential requirement that the party seeking standing under section" } ]

[ { "docid": "977096", "title": "", "text": "where, as here, the employing entity is immune from punitive damages, individual liability under Title VII promotes the purposes on Title VII and the 1991 amendments. Malone does not provide one example of a court creating such an exception for these or any other reasons. Because the court agrees with the analysis in the Smith case and thinks it unlikely that the Eleventh Circuit will do away with its prohibition on individual liability under Title VII, the court declines Malone’s invitation to create an exception to this general rule for these types of cases or ignore the Eleventh Circuit’s previous holdings on the subject. To the extent that Morgan, Lovelace, and the Commissioners seek a dismissal of Malone’s claims against them in their individual capacities under Title VII, their motions to dismiss are due to be GRANTED. 4. Employer as Defined by Title VII [30,31] Title VII defines employer as a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person ... 42 U.S.C. § 2000e(b). For purposes of this statute, “person” includes individuals, governments, and governmental agencies. See, 42 U.S.C. § 2000e(a). The definition of employer under Title VII is to be construed liberally. See, Williams v. City of Montgomery, 742 F.2d 586, 588 (11th Cir.1984) (citation omitted). Malone alleges that he was employed by the Board and that the Board employs more than fifteen people. The court cannot say that Malone has failed to allege that the Board was his employer within the meaning of Title VII. Nor can the court determine that the Board was not Malone’s employer within the meaning of Title VII on the basis of the authority to which the Board points without more factual information than is presently before the court. Thus, to the extent that the Board seeks dismissal of Malone’s Title VII claims on this basis, its motion is due to be DENIED. 5. Title VII Timing Requirements Defendants raise the Title VII" } ]

[ { "docid": "20324607", "title": "", "text": "MEMORANDUM OPINION AND ORDER ALBRITTON, District Judge. I. INTRODUCTION This cause is before the court on a Motion to Dismiss the Complaint filed by Defendant Kenneth L. Todd M.D. (“Todd”). In this case, the Plaintiff, Pam Martin Hamm (“Hamm”), brings claims under 42 U.S.C. § 2000e and the 1991 Civil Rights Act (collectively “Title VH”) and 42 U.S.C. § 1983 against Lakeview Community Hospital (“Lakeview”) and Todd. In count one of the Complaint, Hamm brings a claim for quid pro quo sexual harassment. In count two, Hamm asserts that Lakeview and Todd created a hostile environment. In count three, Hamm brings a claim for retaliation. Hamm also brings state law claims of invasion of privacy and intentional infliction of emotional harm against Lakeview and Todd. Todd has moved for dismissal of counts one, two, and three of the Complaint as well as paragraph four of Hamm’s prayer for relief on the theory that Title VII claims cannot be brought against persons in their individual capacities. For the reasons to be discussed below, Todd’s Motion to Dismiss counts one, two, and three of the Complaint and paragraph four of the prayer for relief is due to be GRANTED. II. STANDARD OF REVIEW A court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations in the complaint. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); see also Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986) (“[W]e may not ... [dismiss] unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims in the complaint that would entitle him or her to relief.”) (citation omitted). The court will accept as true all well-pleaded factual allegations and will view them in a light most favorable to the nonmoving party. Hishon, 467 U.S. at 73, 104 S.Ct. at 2232-33. Furthermore, the threshold is “exceedingly low” for a complaint to survive a" }, { "docid": "20324616", "title": "", "text": "that even though Congress defined ‘employer’ to include ‘any agent’ ... this provision does not impose individual liability but only holds the employer accountable for the acts of its individual agents.” Dubisar-Dewberry v. Folmar, 883 F.Supp. 648 (M.D.Ala.1995) (citation omitted). See also Kelley, 923 F.Supp. at 1499 (in the Eleventh Circuit, “an agent of an employer may not be sued in his individual capacity under Title VII”). Under Eleventh Circuit precedent, “the proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly.” Cross, 49 F.3d at 1504 (quoting Busby, 931 F.2d at 772). Hamm argues, however, that there is a distinction to be made between employee-agents of the employer and third-party agents of the employer. According to Hamm, Eleventh Circuit cases prohibiting individual capacity suits only address agents of the employer, who are. also employees of the employer. See eg. Bahadirli v. Domino’s Pizza, 873 F.Supp. 1528, n. 2 (M.D.Ala.1995) (“employee/agents may not be sued in their individual capacity under Title VII”). Hamm argues that individual capacity suits are allowed by the circuit when the individual is a third-party agent of the employer. Hamm cites Williams v. City of Montgomery, 742 F.2d 586 (11th Cir.1984) (per curiam), as authority that third-party agents can be held individually liable. In Williams, a black fire fighter was fired for having committed a felony and was not reinstated, while white fire fighters who were discharged for committing felonies were reinstated. Williams, 742 F.2d at 588. The fire fighter who was not reinstated brought discrimination claims against the City and the Montgomery City-County Personnel Board. Id. The Board contended that it was not an employer within Title VII. Id. The court reasoned that where an employer has delegated some of its traditional rights, such as hiring and firing, to a third party, the third party has been found to be an employer through the agency relationship. Id. at 589 (citation omitted). The court pointed out that Alabama Act No. 2284 granted the Board" }, { "docid": "20324614", "title": "", "text": "that Congress intended to allow individuals to be held liable either before or after the amendments. Id. at 978. Not only has this district rejected the argument that the 1991 Amendments to Title VII allow for individual liability, but the Eleventh Circuit has also recently affirmed its position by citing Busby in holding that an individual was not an employer within the meaning of Title VII. See Cross, 49 F.3d 1490, 1504. Therefore, this court finds that the Eleventh Circuit still prohibits individual liability under Title VII. See also Kelley, 923 F.Supp. at 1499. Hamm argues that even if the Eleventh Circuit prohibits individual liability under Title VII, there is an exception to the rule. This district has recognized that there may be situations in which an exception to the prohibition of individual liability under Title VII would be appropriate. See Smith, 850 F.Supp. at 978 (stating without deciding that individual liability may be appropriate where an employer is bankrupt or where it is necessary to pierce the corporate veil); see also Malone v. Chambers County Bd. of Com’rs, 875 F.Supp. 773 (M.D.Ala.1994) (declining to create exception where employing entity was immune from punitive damage liability). The exception for which Hamm is arguing is one based on the theory of agency. Hamm argues that Todd had at least partial supervisory authority over her in the areas of compensation, evaluations, scheduling, promotions, demotions, and terminations. According to Hamm, this supervisory role means that Todd is an agent of the employer, placing Todd within the Title VII definition of “employer” as “any agent” of the employer. See 42 U.S.C. § 2000e(b). To the extent that Hamm is claiming that Todd may be sued as an individual merely because he was a supervisor of Hamm, her argument is unavailing. In the Eleventh Circuit, the statutory definition of “employer” has been interpreted to provide an avenue of liability based on the doctrine of respondeat superior, rather than to provide a method by which supervisors can be sued under Title VII. See Mason v. Stallings, 82 F.3d 1007 (11th Cir.1996). “[T]he significance of Busby is" }, { "docid": "977094", "title": "", "text": "amendments of Title VII. Id. at *2. The Wilson court predicted that the Eleventh Circuit would someday agree with its conclusion that the Civil Rights Act of 1991 provides for individual capacity suits against the agents of the employing entity. Id. Relying on Smith v. Capitol City Club of Montgomery, 850 F.Supp. 976 (M.D.Ala. 1994), Malone further contends that the circumstances of this case support an exception to the rule against individual liability. In Smith, the court ruled on a motion to dismiss filed by plaintiffs former manager on the basis that he could not be individually liable under Title VII. Smith, 850 F.Supp. at 977. The plaintiff argued that the passage of the Civil Rights Act of 1991 invalidated prior Eleventh Circuit authority which held that individual capacity suits were inappropriate under Title VIL Id. at 978. Relying on guidance from a Ninth Circuit opinion, the Smith court disagreed with Wilson and predicted that when the Eleventh Circuit reaches this issue it will hold that the rule in the Eleventh Circuit prohibiting individual liability under Title VII remains good law notwithstanding the availability of damages that an individual defendant can provide. Id. at 979. After carefully considering the changes wrought by the Civil Rights Act of 1991 and the policy arguments for and against individual liability under Title VII, the court held that “the 1991 amendments to Title VII do not authorize this court to hold an individual liable for [punitive and compensatory] damages.” Id. at 980-81. As a final note, the court discussed two situations in which a denial of individual liability might make a practical difference and prevent a plaintiff from recovering: when an employer is bankrupt and when a plaintiff needs to pierce the corporate veil to reach the assets of individual owners, directors, or officers. Id. at 981. The court declined to proffer an opinion on “whether and when an exception to the rule against individual liability should exist.” Id. Malone asserts that this case presents the court with the opportunity to create an important exception to the rule against individual liability. Malone contends that" }, { "docid": "20324612", "title": "", "text": "Circuit that Title VII does not provide a cause of action against individuals. See Busby v. City of Orlando, 931 F.2d 764 (11th Cir.1991); Cross v. Alabama, 49 F.3d 1490 (11th Cir.1995); and see also Kelley v. Troy State University, 923 F.Supp. 1494 (M.D.Ala. 1996). In its interpretation of the provisions of Title VII, the Eleventh Circuit has determined that “[i]ndividual capacity suits under Title VII are ... inappropriate.” Cross, 49 F.3d at 1504 (quoting Busby, 931 F.2d at 772). The rationale for not allowing individual liability under Title VII is that “the relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act.” Id. Allowing individual liability would create the anomaly that employers with less than fifteen employees would be shielded from liability, while individuals would still be liable. “While gearing the amount of damages to the size of the employer makes sense if the employer is the party to be held liable, it makes no sense if it is the individual who is to be held liable.” Smith v. Capitol City Club, 850 F.Supp. 976, 979 (M.D.Ala.1994). Hamm argues that Todd still may be held liable as an individual. Hamm’s first argument in support of this position is that Eleventh Circuit precedent is not clearly established. Hamm argues that Todd’s reliance on Busby is misplaced because that ease was decided before the 1991 amendments to Title VII. Although Hamm does not elaborate upon the effect that the 1991 amendments could have on the holding in Busby, other plaintiffs have made similar arguments. See Smith, 850 F.Supp. at 977. In Smith, the plaintiff argued that before the 1991 amendments, remedies under Title VII were limited to relief that the employer was in the best position to provide such as reinstatement and back pay. Id. The amendments, however, allowed for compensatory and punitive damages. Id. Therefore, the plaintiff argued, individuals could be held liable under the amendments. Id. After reviewing the policy reasons behind Title VII and its amendments, the Smith court rejected this argument because there is no evidence" }, { "docid": "3363867", "title": "", "text": "sexual harassment claim against co-defendants Vélez and Lasalle only if they were her “employers” within the meaning of Title VII. The statute defines an employer as “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person.” 42 U.S.C. § 2000e(b). Although the law is completely silent as to individual liability, de Jesús argues that the co-defendants, as the plaintiffs supervisors, may be held personally liable under Title VII as agents of Almacenes Pitusa, Inc. Vélez and Lasalle contend that while supervisors may ordinarily be said to be agents of their corporate employer, this agency does not render them independent “employers” as defined in Title VII. The Court of Appeals for the First Circuit has never decided this issue. See Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 443-44 (1st Cir.1997); Hernández v. Miranda Vélez, 1994 WL 394855, at *6 (D.P.R.1994). However, the weight of judicial authority has construed the agency provision in the statutory definition as meant not to impose individual liability, but to incorporate respondeat superior into the Act. In Hernández Torres v. Intercontinental Trading, Ltd., 1994 WL 752591, at *5 (D.P.R.1994), the court stated: Title VII’s identification of an agent of the employer as the “employer” itself serves the sole purpose of binding the employer through its agency relationships to discriminatory acts undertaken by not merely the employer’s employee’s but also those who work for the employer outside the company. Said ‘employer’ definition removes the possible defense of an employer who otherwise might attempt disowning responsibility for the acts of his employees or other agents. As such, the definition of ‘employer’ which includes the employer’s agents, serves not as a vehicle to impute liability upon said agent, but rather as a means to incorporate respondeat superior liability into the Act. Therefore, “including agents in the definition of ‘employer’ simply allows ‘a plaintiff to recover ... by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly.” Quiron v. L.N. Violette Co., 897 F.Supp. 18, 20" }, { "docid": "950582", "title": "", "text": "preceding calendar year, and any agent of such person. 42 U.S.C. § 12111(5)(A). The ADA’s definition of employer mirrors the definition in Title VII, 42 U.S.C. § 2000e(b). Moreover, Section 504(d) of the Rehabilitation Act states, “[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.).” 29 U.S.C. § 794(d). Thus, in an employment discrimination case, such as the instant one, the ADA’s definition of “employer” is applicable to the three counts in Plaintiffs Amended Complaint which state a claim under the Rehabilitation Act. The Seventh Circuit has not directly addressed whether a supervisory officer is an “employer” within the meaning of the ADA, Title VII and the Rehabilitation Act. However, the Seventh Circuit has, without discussion, upheld personal liability against decision-making supervisors in at least one Title VII case. Gaddy v. Abex Corp., 884 F.2d 312, 318-19 (7th Cir.1989). See also Price v. Marshall Erdman & Associates, Inc., 966 F.2d 320, 324 (7th Cir.1992) (upholding personal liability against a supervisory employee in an Age Discrimination in Employment Act of 1967 case.) The District Courts in the Northern District of Illinois are split on the issue of whether the ADA, Title VII and the Rehabilitation Act authorize an action against an individual supervisory employee. A number of cases have held that, as individual supervi sory employees are not “employers” within the meaning of the ADA or Title VII, such individuals cannot be sued under the ADA or Title VII in their individual capacity. Dirk-sen v. City of Springfield, 842 F.Supp. 1117, 1122-23 (C.D.Ill.1994) (Mills J.); Pelech v. Klaff-Joss, LP, 828 F.Supp. 525, 529 (N.D.Ill.1993) (Aspen J.); Pommier v. James L. Edelstein Enterprises, 816 F.Supp. 476, 480 (N.D.Ill.1993) (Aspen J.); Weiss v. Coca-Cola Bottling Co. of Chicago, 772 F.Supp. 407, 410-411 (N.D.Ill.1991) (Duff J.). The Pelech court reasoned that Title VII prohibits “employers” from discriminating against individuals on the basis of “race, color, religion, sex or national origin.” 828 F.Supp." }, { "docid": "16304190", "title": "", "text": "national origin. As the Act makes clear, “[t]he term ‘employer’ means a person engaged in an industry affecting commerce who has fifteen or more employees ..., and any agent of such person....” 42 U.S.C. § 2000e(b). Defendants argue that plaintiffs Title VII claim must be dismissed as to the individual defendants— namely defendants Sorg, Schwarzenbaeh, Meister, and Helwig — because Title VU’s definition of the term “employer” does not contemplate personal liability for individuals. Defendants are correct. In Tomka v. Seiler Corp., 66 F.3d 1295, 1313-16 (2d Cir.1995), the Second Circuit held explicitly that individual defendants may not be sued in their personal capacities under Title VII. The court found that the statutory scheme and remedial provisions of Title VII indicate that Congress intended to limit liability to employer-entities with fifteen or more employees, and it concluded that “[a] finding of agent liability ... would lead to results that Congress could not have contemplated.” Id. at 1314. See also Genas v. State of New York Dep’t of Correctional Servs., 75 F.3d 825, 829 n. 3 (2d Cir.1996) (doctrine of “qualified immunity” held irrelevant to Title VII claims because there is no individual liability under Title VII); Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 n. 2 (2d Cir.1995) (even individuals with supervisory roles may not be held individually liable under Title VII); Campbell v. Grayline Air Shuttle, Inc., 930 F.Supp. 794, 800 (E.D.N.Y. 1996) (same); Amin v. Quad/Graphics, Inc., 929 F.Supp. 73, 78 (N.D.N.Y.1996) (same); Jungels v. State University College of New York, 922 F.Supp. 779, 782 (W.D.N.Y.1996) (because there is no individual liability of agents under Title VII, “the proper method for a plaintiff to recover under Title VII is by suing the employer”); Tagore v. NYNEX Network Systems Co., 921 F.Supp. 1146, 1151 (S.D.N.Y.1996) (supervisors not individually liable under Title VII’s definition of “employer”); Storr v. Anderson School, 919 F.Supp. 144, 148 (S.D.N.Y.1996) (Tomka’s holding that supervisors are not individually liable under Title VII “strikes an appropriate balance between the interests that Congress sought to pursue”). In light of the Second Circuit’s holding in Tomka, I respectfully" }, { "docid": "23108699", "title": "", "text": "IV Because a supervisor does not, in his individual capacity, fall within Title VII’s definition of employer, Williams can state no set of facts which would enable her to recover under the statute. The district court’s dismissal under Rule 12(b)(6) for failure to state a claim on which relief can be granted was proper. AFFIRMED. . Title VII defines \"employer” as \"a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person[.]” 42 U.S.C. § 2000e(b). The corresponding provisions of the ADA and ADEA are found at 42 U.S.C. § 12111(5)(A) (ADA), and 29 U.S.C. § 630(b) (ADEA). . The Ninth Circuit has been categorical in its rejection of individual liability. Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir.1995). The Second Circuit too has recently rejected individual liability under Title VII. Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir.1995). The Eleventh Circuit, despite earlier wavering, has recently reaffirmed its rejection of individual liability. Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir.1995). The Eighth Circuit has not formally addressed the question of individual liability under Title VII, but rejected individual liability under a similarly worded statute. Lenhardt v. Basic Institute of Technology, 55 F.3d 377, 380-81 (8th Cir.1995) (interpreting Missouri Human Rights Act by analogy with Title VII). The Fifth and Tenth Circuits have sent mixed messages. Compare Grant, 21 F.3d at 649, and Sauers v. Salt Lake Cty., 1 F.3d 1122, 1124-25 (10th Cir.1993) (rejecting individual liability) with Garcia v. Elf Atochem North America, 28 F.3d 446, 451 (5th Cir.1994) (supervisors who exercise employer’s traditional rights are liable under Title VII), and Ball v. Renner, 54 F.3d 664, 668 (10th Cir.1995) (individual liability under Title VII approved in theory, but considered an \"open question\"). The Sixth Circuit has recognized individual liability under Title VII in dictum. York v. Tennessee Crushed Stone Ass'n, 684 F.2d 360, 362 (6th Cir.1982). The Fourth Circuit has rejected individual liability under the ADEA, though stating in dictum that an employee \"may not be shielded as an employer’s agent\" except where" }, { "docid": "3363866", "title": "", "text": "administrative claims. For the reasons discussed below, I recommend dismissal of the complaint, including all supplemental claims against Vélez and La-salle, because they are not employers within the statutory definition in Title VII. Notwithstanding my recommendation to dismiss, in evaluating the second defense, I would find that the plaintiff did exhaust all administrative requirements and timely filed her administrative claims. A. Do Velez and Lasalle Fall Within the Statutory Definition of “Employer?” Under Title VII, it is unlawful “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 ... sex.” 42 U.S.C. § 2000e-2(a)(1). Although the statute does not explicitly address the question of sexual harassment, it has been interpreted to prohibit such behavior. Marrero-Rivera v. Department of Justice, 800 F.Supp. 1024, 1027 (D.P.R.1992). Furthermore, since 1980, the regulations governing Title VII have explicitly prohibited sexual harassment. 29 C.F.R. § 1604.11. De Jesús may pursue her Title VII sexual harassment claim against co-defendants Vélez and Lasalle only if they were her “employers” within the meaning of Title VII. The statute defines an employer as “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person.” 42 U.S.C. § 2000e(b). Although the law is completely silent as to individual liability, de Jesús argues that the co-defendants, as the plaintiffs supervisors, may be held personally liable under Title VII as agents of Almacenes Pitusa, Inc. Vélez and Lasalle contend that while supervisors may ordinarily be said to be agents of their corporate employer, this agency does not render them independent “employers” as defined in Title VII. The Court of Appeals for the First Circuit has never decided this issue. See Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 443-44 (1st Cir.1997); Hernández v. Miranda Vélez, 1994 WL 394855, at *6 (D.P.R.1994). However, the weight of judicial authority has construed the agency provision in the statutory definition as meant not to impose individual liability," }, { "docid": "20324619", "title": "", "text": "In the instant case, Hamm seeks to hold Todd liable in his individual capacity. Second, Hamm has not alleged a sufficient delegation of rights to Todd to establish that Todd is an employer for Title VII purposes. Hamm has merely averred that Todd recommended that she be terminated. There is no allegation that Todd was delegated responsibility for deciding whether or not Hamm would be terminated nor any allegation that Todd had authority to decide Hamm’s employment status or conditions. Merely recommending that Hamm be fired does not rise to the level of exercising rights traditionally reserved to the employer. Given that Eleventh Circuit precedent is so strongly against recognizing individual liability under Title VII, this court declines to recognize an exception to that rule in this case. Accordingly, Hamm’s claims against Todd in counts one, two, and three of the Complaint are due to be dismissed. C. Prayer for Relief Todd argues that paragraph four of Hamm’s prayer for relief must be dismissed because in it she requests reinstatement, backpay with interest, compensatory, punitive and/or nominal damages, and recovery for loss of seniority and pension benefits. To the extent that this prayer for relief relates to the claims against Todd in counts one, two and three, it is also dismissed. V. CONCLUSION Because Hamm’s claims against Todd in counts one, two, and three of the Complaint are brought against an individual and because the Eleventh Circuit does not recognize individual liability under Title VII, Hamm has failed to state a Title VII claim against Todd upon which relief may be granted. Therefore, Todd’s Motion to Dismiss counts one, two, and three and paragraph four of the prayer for relief is ordered GRANTED." }, { "docid": "20324617", "title": "", "text": "be sued in their individual capacity under Title VII”). Hamm argues that individual capacity suits are allowed by the circuit when the individual is a third-party agent of the employer. Hamm cites Williams v. City of Montgomery, 742 F.2d 586 (11th Cir.1984) (per curiam), as authority that third-party agents can be held individually liable. In Williams, a black fire fighter was fired for having committed a felony and was not reinstated, while white fire fighters who were discharged for committing felonies were reinstated. Williams, 742 F.2d at 588. The fire fighter who was not reinstated brought discrimination claims against the City and the Montgomery City-County Personnel Board. Id. The Board contended that it was not an employer within Title VII. Id. The court reasoned that where an employer has delegated some of its traditional rights, such as hiring and firing, to a third party, the third party has been found to be an employer through the agency relationship. Id. at 589 (citation omitted). The court pointed out that Alabama Act No. 2284 granted the Board rights traditionally reserved to the employer. Id. These rights included establishing a pay plan, formulating minimum standards for jobs, evaluating employees, and transferring, promoting, or demoting em ployees. Id. Consequently, the court held that the Board was an agent of the City for purposes of Title VII. Id. To support the assertion that Todd is a third-party agent, Hamm alleges that Todd had asked that Hamm be terminated. Complaint at ¶ 16. Hamm then draws the inference that the changes made in her working schedule were due to Todd’s request. However, Hamm also concedes that “Todd did not have the direct authority over her hiring and firing____” Id. at ¶ 35. This court finds that, to the extent that Williams recognizes an exception by which individuals may be held liable under Title VII, the instant case does not present a factual situation which would fit that exception. First, the Williams court held that the Board could be held liable as an agent of the City in the Board’s official capacity, not the members’ individual capacities." }, { "docid": "20324615", "title": "", "text": "County Bd. of Com’rs, 875 F.Supp. 773 (M.D.Ala.1994) (declining to create exception where employing entity was immune from punitive damage liability). The exception for which Hamm is arguing is one based on the theory of agency. Hamm argues that Todd had at least partial supervisory authority over her in the areas of compensation, evaluations, scheduling, promotions, demotions, and terminations. According to Hamm, this supervisory role means that Todd is an agent of the employer, placing Todd within the Title VII definition of “employer” as “any agent” of the employer. See 42 U.S.C. § 2000e(b). To the extent that Hamm is claiming that Todd may be sued as an individual merely because he was a supervisor of Hamm, her argument is unavailing. In the Eleventh Circuit, the statutory definition of “employer” has been interpreted to provide an avenue of liability based on the doctrine of respondeat superior, rather than to provide a method by which supervisors can be sued under Title VII. See Mason v. Stallings, 82 F.3d 1007 (11th Cir.1996). “[T]he significance of Busby is that even though Congress defined ‘employer’ to include ‘any agent’ ... this provision does not impose individual liability but only holds the employer accountable for the acts of its individual agents.” Dubisar-Dewberry v. Folmar, 883 F.Supp. 648 (M.D.Ala.1995) (citation omitted). See also Kelley, 923 F.Supp. at 1499 (in the Eleventh Circuit, “an agent of an employer may not be sued in his individual capacity under Title VII”). Under Eleventh Circuit precedent, “the proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly.” Cross, 49 F.3d at 1504 (quoting Busby, 931 F.2d at 772). Hamm argues, however, that there is a distinction to be made between employee-agents of the employer and third-party agents of the employer. According to Hamm, Eleventh Circuit cases prohibiting individual capacity suits only address agents of the employer, who are. also employees of the employer. See eg. Bahadirli v. Domino’s Pizza, 873 F.Supp. 1528, n. 2 (M.D.Ala.1995) (“employee/agents may not" }, { "docid": "20324610", "title": "", "text": "Emergency Room Supervisor that Hamm be terminated. Hamm was told by her supervisor, however, that she would not be terminated. When Hamm then told her supervisor about Todd’s advances, she was told that the problem would be fixed. The Hospital Administrator then told Hamm that she would no longer work when Todd did, and asked Hamm to call the administrator each Monday after a shift to report on Hamm’s work performance. Lakeview then discontinued its “Baylor Plan” for nurse scheduling and Hamm was only assigned to work two days over a month and one-half. Hamm was then placed on suspension for being absent without a doctor’s excuse. When the “Baylor Plan” was reinstituted, Lakeview did not call Hamm to allow her to work under her previous schedule. IV. DISCUSSION A. Claims under § 1983 Section 1983 applies only to persons acting under “color of state law” and does not reach the conduct of private individuals. Wideman v. Shallowford Community Hosp., 826 F.2d 1030 (11th Cir.1987). There is no allegation that Todd was employed by the state nor that he was acting under color of state law. Todd is instead an individual employed by a private company which contracts with Lakeview. Moreover, Hamm concedes that her § 1983 claim is due to be dismissed. Therefore, this court holds that the § 1983 causes of action in counts one, two, and three are to be dismissed as to Todd. B. Claims under Title VII To bring a claim for an unlawful employment practice under Title VII, a plaintiff must allege that the defendant is an “employer” within the statute. An “employer” is defined as one who is “engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year, and any agent of such a person.” 42 U.S.C. § 2000e(b). Todd has argued that he does not fit into this definition of employer and, therefore, that Hamm’s Title VII claims are due to be dismissed as to Todd. It is well-established in the Eleventh" }, { "docid": "20324613", "title": "", "text": "to be held liable.” Smith v. Capitol City Club, 850 F.Supp. 976, 979 (M.D.Ala.1994). Hamm argues that Todd still may be held liable as an individual. Hamm’s first argument in support of this position is that Eleventh Circuit precedent is not clearly established. Hamm argues that Todd’s reliance on Busby is misplaced because that ease was decided before the 1991 amendments to Title VII. Although Hamm does not elaborate upon the effect that the 1991 amendments could have on the holding in Busby, other plaintiffs have made similar arguments. See Smith, 850 F.Supp. at 977. In Smith, the plaintiff argued that before the 1991 amendments, remedies under Title VII were limited to relief that the employer was in the best position to provide such as reinstatement and back pay. Id. The amendments, however, allowed for compensatory and punitive damages. Id. Therefore, the plaintiff argued, individuals could be held liable under the amendments. Id. After reviewing the policy reasons behind Title VII and its amendments, the Smith court rejected this argument because there is no evidence that Congress intended to allow individuals to be held liable either before or after the amendments. Id. at 978. Not only has this district rejected the argument that the 1991 Amendments to Title VII allow for individual liability, but the Eleventh Circuit has also recently affirmed its position by citing Busby in holding that an individual was not an employer within the meaning of Title VII. See Cross, 49 F.3d 1490, 1504. Therefore, this court finds that the Eleventh Circuit still prohibits individual liability under Title VII. See also Kelley, 923 F.Supp. at 1499. Hamm argues that even if the Eleventh Circuit prohibits individual liability under Title VII, there is an exception to the rule. This district has recognized that there may be situations in which an exception to the prohibition of individual liability under Title VII would be appropriate. See Smith, 850 F.Supp. at 978 (stating without deciding that individual liability may be appropriate where an employer is bankrupt or where it is necessary to pierce the corporate veil); see also Malone v. Chambers" }, { "docid": "20324618", "title": "", "text": "rights traditionally reserved to the employer. Id. These rights included establishing a pay plan, formulating minimum standards for jobs, evaluating employees, and transferring, promoting, or demoting em ployees. Id. Consequently, the court held that the Board was an agent of the City for purposes of Title VII. Id. To support the assertion that Todd is a third-party agent, Hamm alleges that Todd had asked that Hamm be terminated. Complaint at ¶ 16. Hamm then draws the inference that the changes made in her working schedule were due to Todd’s request. However, Hamm also concedes that “Todd did not have the direct authority over her hiring and firing____” Id. at ¶ 35. This court finds that, to the extent that Williams recognizes an exception by which individuals may be held liable under Title VII, the instant case does not present a factual situation which would fit that exception. First, the Williams court held that the Board could be held liable as an agent of the City in the Board’s official capacity, not the members’ individual capacities. In the instant case, Hamm seeks to hold Todd liable in his individual capacity. Second, Hamm has not alleged a sufficient delegation of rights to Todd to establish that Todd is an employer for Title VII purposes. Hamm has merely averred that Todd recommended that she be terminated. There is no allegation that Todd was delegated responsibility for deciding whether or not Hamm would be terminated nor any allegation that Todd had authority to decide Hamm’s employment status or conditions. Merely recommending that Hamm be fired does not rise to the level of exercising rights traditionally reserved to the employer. Given that Eleventh Circuit precedent is so strongly against recognizing individual liability under Title VII, this court declines to recognize an exception to that rule in this case. Accordingly, Hamm’s claims against Todd in counts one, two, and three of the Complaint are due to be dismissed. C. Prayer for Relief Todd argues that paragraph four of Hamm’s prayer for relief must be dismissed because in it she requests reinstatement, backpay with interest, compensatory, punitive" }, { "docid": "23108698", "title": "", "text": "take comfort in the knowledge that she continues to work for this company, while her harasser does not — and that the company’s prompt action is likely to discourage other would-be harassers. This is precisely the result Title VII was meant to achieve. If a victim of harassment suffers mental and emotional distress, embarrassment, and humiliation so severe that even an employer’s prompt action does not provide sufficient compensation, it is not unreasonable to assume that Congress intended the victim to turn to traditional tort remedies for redress. This avenue remains open to Williams. This analysis is consonant with AIC Security. The plaintiff in that case argued that where an employer is bankrupt or otherwise judgment-proof, a plaintiff can only recover if there is individual liability. “While true,” we noted, “that is not enough for us to upset the structure Congress has set up.” AIC Security, 55 F.3d at 1282 n. 9. That the employer in the case at bar is judgment-proof because it is innocent of wrongdoing, rather than bankrupt, does not change matters. IV Because a supervisor does not, in his individual capacity, fall within Title VII’s definition of employer, Williams can state no set of facts which would enable her to recover under the statute. The district court’s dismissal under Rule 12(b)(6) for failure to state a claim on which relief can be granted was proper. AFFIRMED. . Title VII defines \"employer” as \"a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person[.]” 42 U.S.C. § 2000e(b). The corresponding provisions of the ADA and ADEA are found at 42 U.S.C. § 12111(5)(A) (ADA), and 29 U.S.C. § 630(b) (ADEA). . The Ninth Circuit has been categorical in its rejection of individual liability. Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir.1995). The Second Circuit too has recently rejected individual liability under Title VII. Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir.1995). The Eleventh Circuit, despite earlier wavering, has recently reaffirmed its rejection of individual liability. Cross v. Alabama, 49 F.3d 1490, 1504 (11th" }, { "docid": "977093", "title": "", "text": "constitute a violation of the Act.”); Roberts v. Houston County Bd. of Educ., 819 F.Supp. 1019, 1029 (M.D.Ala.1993) (school superintendent could not be sued in his individual capacity under Title VII.). Malone contends that, in hght of the Civil Rights Act of 1991, these cases are no longer good law. Malone supports his argument by pointing to Wilson v. Gillis Advertising Co., No. 92-AR-2126-S, 1993 WL 503117 (N.DAla. Jan. 8, 1993). Wilson allowed a plaintiff in a Title VII suit against the company which employed her to amend her complaint to add claims against the company president and plaintiffs supervisor in their individual capacities. Wilson, 1993 WL 503117 at *3. The Wilson court acknowledged that the Eleventh Circuit has held that individual capacity suits are inappropriate under Title VII, but it distinguished that Eleventh Circuit precedent by pointing out that those cases had involved the public employment context. Id. at *1. The Wilson court also made much of the fact that the Eleventh Circuit cases which reached the no individual liability holding pre-date the 1991 amendments of Title VII. Id. at *2. The Wilson court predicted that the Eleventh Circuit would someday agree with its conclusion that the Civil Rights Act of 1991 provides for individual capacity suits against the agents of the employing entity. Id. Relying on Smith v. Capitol City Club of Montgomery, 850 F.Supp. 976 (M.D.Ala. 1994), Malone further contends that the circumstances of this case support an exception to the rule against individual liability. In Smith, the court ruled on a motion to dismiss filed by plaintiffs former manager on the basis that he could not be individually liable under Title VII. Smith, 850 F.Supp. at 977. The plaintiff argued that the passage of the Civil Rights Act of 1991 invalidated prior Eleventh Circuit authority which held that individual capacity suits were inappropriate under Title VIL Id. at 978. Relying on guidance from a Ninth Circuit opinion, the Smith court disagreed with Wilson and predicted that when the Eleventh Circuit reaches this issue it will hold that the rule in the Eleventh Circuit prohibiting individual liability" }, { "docid": "13438174", "title": "", "text": "known of his harassment of Pfau and other DCAA employees and failed to take prompt remedial action. We find each of these arguments to be without merit. a. Gonzales as “Employer” Title VII prohibits employers from, among other things, “discriminat[ing] 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.” 42 U.S.C. § 2000e-2(a)(l). Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person----” 42 U.S.C. § 2000e(b) (emphasis added). While the plain language of the above provisions facially appears to provide a basis for rendering agents of an employer personally liable for their discriminatory acts, this circuit has interpreted Title VII’s definition of employer as merely importing common law agency principles of respondeat superior liability. See Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.1994) (“[T]he purpose of the ‘agent’ provision in § 2000e(b) was to incorporate respondeat superior liability into title VII.”). Thus, the actions of one who constitutes an agent of an employer may be considered the actions of the employer for purposes of imposing Title VII liability on the employer. Pfau contends that Gonzales was the DCAA’s agent within the meaning of Title VII, and that his knowledge of his own sexually harassing conduct is imputed to the DCAA, rendering it strictly liable under Title VII. We reject this contention. In Meritor, the Supreme Court rejected the notion that supervisory personnel are agents per se within the meaning of Title VII’s definition of employer, and thus rejected the notion that employers are strictly liable for the sexually harassing conduct of their supervisors in all circumstances. See Meritor, 477 U.S. at 72, 106 S.Ct. at 2407-08. The Court “deeline[d] ... to issue a definitive rule on employer liability” for the actions of supervisory personnel, but indicated that common law agency principles may-be useful in determining" }, { "docid": "20324611", "title": "", "text": "state nor that he was acting under color of state law. Todd is instead an individual employed by a private company which contracts with Lakeview. Moreover, Hamm concedes that her § 1983 claim is due to be dismissed. Therefore, this court holds that the § 1983 causes of action in counts one, two, and three are to be dismissed as to Todd. B. Claims under Title VII To bring a claim for an unlawful employment practice under Title VII, a plaintiff must allege that the defendant is an “employer” within the statute. An “employer” is defined as one who is “engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year, and any agent of such a person.” 42 U.S.C. § 2000e(b). Todd has argued that he does not fit into this definition of employer and, therefore, that Hamm’s Title VII claims are due to be dismissed as to Todd. It is well-established in the Eleventh Circuit that Title VII does not provide a cause of action against individuals. See Busby v. City of Orlando, 931 F.2d 764 (11th Cir.1991); Cross v. Alabama, 49 F.3d 1490 (11th Cir.1995); and see also Kelley v. Troy State University, 923 F.Supp. 1494 (M.D.Ala. 1996). In its interpretation of the provisions of Title VII, the Eleventh Circuit has determined that “[i]ndividual capacity suits under Title VII are ... inappropriate.” Cross, 49 F.3d at 1504 (quoting Busby, 931 F.2d at 772). The rationale for not allowing individual liability under Title VII is that “the relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act.” Id. Allowing individual liability would create the anomaly that employers with less than fifteen employees would be shielded from liability, while individuals would still be liable. “While gearing the amount of damages to the size of the employer makes sense if the employer is the party to be held liable, it makes no sense if it is the individual who is" } ]

[ { "docid": "23428567", "title": "", "text": "and in this case, despite the availability of that ground, the Court has decided to base its award on far broader considerations of equity. In instituting the case sub judice, plaintiffs have served in the capacity of “private attorneys general” seeking to enforce the rights of the class they represent. See generally Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970). If, pursuant to this action, plaintiffs have benefited their class and have effectuated a strong congressional policy, they are entitled to attorneys’ fees regardless of defendants’ good or bad faith. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Indeed, under such circumstances, the award loses much of its discretionary character and becomes a part of the effective remedy a court should fashion to encourage public-minded suits, id., and to cany out congressional policy. Lee v. Southern Home Sites, 444 F.2d 143 (5th Cir. 1971). The present case clearly falls among those meant to be encouraged under the principles articulated in Piggie Park Enterprises, Inc. and Mills, and expanded upon in Southern Home Sites and Bradley. The benefit accruing to plaintiffs’ class from the prosecution of this' suit cannot be overemphasized. No other right is more basic to the integrity of our democratic society than is the right plaintiffs assert here to free and equal suffrage. In addition, congressional policy strongly favors the vindication of federal rights violated under color of state iaw, 42 U.S.C. § 1983, and, more specifically, the protection of the right to a nondiscriminatory franchise. See the Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. § 1973; the Civil Rights Acts of 1964, 78 Stat. 241, 42 U.S.C. § 1971; of 1960, 74 Stat. 86, and of 1957, 71 Stat. 634; and U.S.Const., amends. XIV and XV. It is of no consequence that the statute under which plaintiffs filed this suit, 42 U.S.C. § 1983, is silent on the availability of attorneys’ fees. See Long v. Georgia Kraft" } ]

[ { "docid": "23112801", "title": "", "text": "reasonable attorneys’ fees. Attorneys’ Performance 1. The Contingent Nature of Success Plaintiffs’ attorneys argue that they assumed this case on a contingent fee basis. They contend that any attorneys’ fees award, initially computed on the basis of number of work hours times the average hourly billing rate, must be increased to reflect the contingent nature of their recovering any award. Federal court decisions generally reason that the amount of any award of attorneys’ fees should reflect any contingencies which stood between the attorneys and their deserved fee. E.g., Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974); Lindy Bros. Bldrs., Inc. of Phila. v. American R. and S. San. Corp., 487 F.2d 161, 168 (3rd Cir. 1973); Freeman v. Ryan, 133 U.S.App.D.C. 1, 408 F.2d 1204, 1206 (1969); State of Illinois v. Harper and Row Publishers, Inc., 55 F.R.D. 221 (N.D.I11.1972). These decisions parallel the American Bar Association’s determination that attorneys deserve higher compensation for contingent than for fixed-fee work. Cf. Canon 2 of the Code of Professional Responsibility of the American Bar Association, Disciplinary Rule 2-106(B)—(8) (1969). From the attorneys’ standpoint, the contingent fee insures that counsel are compensated not only for their successful efforts but also for unsuccessful litigation. Its use allows attorneys—including attorneys who could not otherwise absorb the costs of lost cases—to take the financial gamble of representing penurious clients, since, over the long run, substantial fees awards in successful cases will provide full and fair compensation for all legal services rendered to all clients. From the public’s standpoint, the contingent fee helps equalize the access of rich, middle-class, and poor individuals to the courts by making attorney decisions concerning representation turn on an action’s merits rather than on the size of a client’s income. Courts’ application of the doctrine in the aid of “private attorneys general” helps attract attorneys to the enforcement of important constitutional principles and significant congressional policies which might otherwise go unrepresented. Comment, Court Awarded Attorney’s Fees and Equal Access to the Courts, 122 U.Pa.L.Rev. 636, 650-652, 708-711 (1974). Federal courts’ failure to make contingency calculations in determining" }, { "docid": "388234", "title": "", "text": "of laws against racial segregation. Further, we have ruled that litigants who are under no obligation to pay attorneys associated with a civil rights organization are nevertheless entitled to recover attorneys’ fees where allowances would otherwise be proper. See, e. g., Brewer v. School Board of City of Norfolk, 456 F.2d 943 (4th Cir. 1972) (by implication); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971) (by implication). Reaching the same conclu sion, the Court of Appeals of the Fifth Circuit said, “What is required is not an obligation to pay attorney fees. Rather what — and all — that is required is the existence of a relationship of attorney and client . . . ” Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 538 (5th Cir. 1970). Accord, Thompson v. Madison County Board of Education, 496 F.2d 682, 689 (5th Cir. 1974). Obviously, in these cases it was apparent that the litigants who had incurred no obligation for fees should not retain the awards. Not until recently has the contention been made that fees should be denied because they would be donated to the civil rights organization that assisted the litigants in presenting their grievances, instead of being paid to the lawyers. In each instance this argument against allowing fees has been rejected. See, e. g., Wilderness Society v. Morton, 161 U.S.App.D.C. 446, 495 F.2d 1026, 1037 (1974); Brandenburger v. Thompson, 494 F.2d 885, 889 (9th Cir. 1974); Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974); cf. Hoitt v. Vitek, 495 F.2d 219, 221 (1st Cir. 1974); see generally Awards of Attorneys’ Fees to Legal Aid Offices, 87 Harv.L.Rev. 411 (1973); Nussbaum, Attorney’s Fees in Public Interest Litigation, 48 N.Y.U.L.Rev. 301 (1973). The rationale of Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968), supports the award of fees even though the successful litigants and their lawyers have agreed to donate whatever they receive to a civil rights organization. In Piggie Park, the Court did not consider allowed fees to be a form of punitive damages, or, strictly speaking, to be simply compensatory. The purpose of" }, { "docid": "14983772", "title": "", "text": "permanent relief; therefore, in agreeing to the consent decree, state defendant was not acting gratuitously. Nadeau v. Helgemoe, 581 F.2d at 281. Thus, the court rejects defendant’s suggestion that the award of attorneys’ fees to plaintiffs’ counsel should be diminished because there were beneficial features in the settlement agreement that arguably fall outside the scope of relief prayed for in the complaint. III. CALCULATION OF FEES; TIME AND LABOR REQUIRED; MULTIPLIER This court adopts the method of computing reasonable attorneys’ fees set out in Lindy Bros. Bldrs., Inc. v. Amer. R. & S. San. Corp., 487 F.2d 161 (3d Cir. 1973). The Ninth Circuit approved this method in Brandenburger v. Thompson, 494 F.2d 885, 890 n. 7 (9th Cir. 1974). Under Lindy, the court fixes a reasonable hourly rate for the attorneys’ time and multiplies the hourly rate for each attorney by the number of hours worked. After this “lodestar” sum is reached, the court then considers the contingent nature of the action and the quality of the attorneys’ efforts to determine whether an increase or decrease of the lodestar is mandated. If the court determines that the lodestar sum should be increased because of the contingent nature of the action and the quality of the attorneys’ work, then the court determines what an appropriate “multiplier” should be. When historical hourly rates are used, another appropriate factor to consider in arriving at the proper “multiplier” is the effect of inflation and other hardships caused by a delay in receiving compensation for services. This additional factor is set forth in Weiss v. Drew National Corp., 465 F.Supp. 548 (S.D.N.Y.1979), and will be considered by the court in the instant computations. The court finds the following hourly rates and claimed number of hours to be fair and reasonable: ATTORNEY SERVICES SENIOR ATTORNEYS Historical Hourly Rates Hours Total 1971 $50.00 113.50 $5,675.00 1972 55.00 1449.25 79,708.75 1973 62.00 591.00 36.642.00 1974 75.00 335.50 25,162.50 1975 81.25 261.50 21,246.87 1976 88.75 77.50 6,878.12 1977 92.50 237.25 21,945.62 1978 106.00 920.50 97.573.00 1979 117.50 651.50 76,551.25 ASSOCIATES Hourly Rates Hours Total 1971 $25.00 120.00 $3,000.00" }, { "docid": "219152", "title": "", "text": "a real party in interest. In Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) the Supreme Court in considering a similar civil rights case brought under Title II found that “special circumstances” may render an award of attorneys fees unjust. We believe that such “special circumstances” are present in this case. In addition to the “special circumstances” noted above, we believe that there are other factors that make the denial of attorneys’ fees proper. First, this case does not represent the typical civil rights claim envisioned by Congress and in the past sponsored by various public interest organizations. Second, the claim for attorneys’ fees is not proportionate to the recovery of damages by plaintiff. Third, the precedential value of this decision is not controlling in light of other concurrent litigation. Plaintiff argues that the allowance of attorneys’ fees should not be affected by the fact that counsel have been retained and paid by the Air Lines Pilots Association. The kinds of organizations involved in these cases cited by plaintiff are public interest organizations which typically represent parties in civil rights suits. Thus the cases cited by plaintiff concern groups such as the American Civil Liberties Union, Lawyers Committee for Civil Rights Under Law, Center for Law in the Public Interest, Women’s Law Fund, Public Advocates, Inc., Legal Aid Society, as well as the Legal Defense Fund. But ALPA’s role in this litigation is in no way analogous to that of a public interest organization. ALPA was directly involved in the substance of the litigation, and it was party to a settlement agreement executed before this suit was filed. Although attorneys fees have been granted in cases with organization sponsorship, they are not awarded without regard to the underlying circumstances of the case. The trial judge is vested with substantial discretion in Title VII cases. See Williams v. General Foods Corp., 492 F.2d 399 (7th Cir. 1974); Schaeffer v. San Diego Yellow Cabs, 462 F.2d 1002 (9th Cir. 1972). In this case the claimed attorneys’ fees are more than four times the damages awarded." }, { "docid": "11495498", "title": "", "text": "under section 706(k) does not constitute the imposition of “liability or punishment” which is barred by section 713(b). The language of the statute does not require a contrary result. Section 706(k) provides that attorneys’ fees may be allowed “as part of the costs,” and appellant concedes that under its interpretation of the statute all costs would be barred. Awarding “costs” to the prevailing party is the general practice in our court system and is not aptly described as “liability or punishment.” The meaning of the phrase “liability or punishment” was not specifically discussed in the legislative proceedings. However, it would be contrary to the clear purpose of Congress in authorizing the award of attorneys’ fees in section 706(k) to interpret these words in section 713(b) in such a way as to preclude an award of attorneys’ fees under section 706(k) whenever the discriminator could establish a good faith defense. “Congress . . . enacted the provision for counsel fees — not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.” Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). This is equally true of Title VII. As we said in a Title VII case, “The allowance of reasonable fees in civil rights cases is an important feature of the enforcement provisions of that Act.” Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002, 1008 (9th Cir. 1972). See also Lea v. Cone Mills Corp., supra, 438 F.2d at 88. Reading section 713(b) to bar allowance of attorneys’ fees whenever good faith reliance could be shown would deter private suits challenging suspect EEOC interpretations of Title VII. At best, such suits are unattractive to private litigants. The issues are often complex; the deference accorded the agency’s interpretation of its governing statute makes success unlikely. Yet it is particularly important that private litigants submit such issues to the courts for determination, for the agency itself will not do so. The agency declined" }, { "docid": "23112791", "title": "", "text": "388, 402, 91 S.Ct. 1999, 29 L.Ed. 619 (1971); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002, 1008 (9th Cir. 1972). See generally Note, Allowance of Attorneys’ Fees in Civil Rights Litigation, 7 Colum.J.L. and Soc.Prob. 381 (1971). The Ninth Circuit, in Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974), suggested that district courts might consider the evidentiary factors listed in two cases from other circuits in determining reasonable attorneys’ fees. One case, Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) (concerning attorneys’ fees in a Title VII action), lists twelve factors: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal service properly; the preclusion of other employment due to acceptance of the case; the customary fee; the contingent or fixed nature of the fee; the time limitations imposed by the client or the case; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the “undesirability” of the case; the nature of the professional relationship with the client; and awards in similar cases. The Fifth Circuit’s list does offer a useful catalogue of factors which a district court might consider in setting reasonable attorneys’ fees. Of course, a district court might not find it possible to consider all, or most of, the factors in any one case. For example, this court notes that the novelty of the legal issues in this litigation makes it impossible to rely on the history of attorneys’ fees awards in other cases. Also, the Fifth Circuit’s opinion does not indicate how a district court is to use the list, how a court is to attach a relative weight to the different factors in determining an award. The other case, Lindy Bros. Bldrs., Inc. of Phila. v. American R. and S. San. Corp., 487 F.2d 161 (3rd Cir. 1973) (concerning attorneys’ fees in an antitrust action), suggests, inter alia, that a district court first determine fees in" }, { "docid": "6390370", "title": "", "text": "Third Circuit in Lindy Bros., Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I) adopted new standards for the award of attorneys’ fees following the settlement of a national class action in a multidistrict antitrust litigation. Subsequently, in Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (1976) (Lindy II), the Third Circuit, in an en banc decision, discussed and explained its previous Opinion and ruled on certain other questions presented in that appeal. Other federal courts have applied the Lindy Bros. standards in cases involving class action settlements. See City of Detroit v. Grinnell Corporation, 495 F.2d 448, 470-473 (2d Cir. 1974); Brandenburger v. Thompson, 494 F.2d 885, 890 (9th Cir. 1974); Grunin v. International House of Pancakes, 513 F.2d 114, 127 (8th Cir. 1975); Arenson v. Board of Trade, 372 F.Supp. 1349, 1355 (N.D.Ill.1974); Liebman v. J. W. Petersen Coal & Oil Company, 63 F.R.D. 684, 690-91, 701 (N.D.Ill.1974); In re Gypsum Cases, 386 F.Supp. 959, 962 (N.D.Cal.1974). In discussing the proper standards which would govern the award of fees to be paid from a settlement fund, the Third Circuit in Lindy I said that the first inquiry of the Court should be into the hours spent by the attorneys, including how many hours were spent in what manner by which attorneys. After determining the time spent, the District Court should then undertake to fix an hourly rate of compensation to be applied to the hours worked. While the amount thus found to constitute reasonable compensation should be the “lodestar” of the Court’s fee determination, at least two other factors should be taken into account in computing the value of attorneys’ services, namely the contingent nature of success and the extent, if any, to which the quality of an attorney’s work mandates either increasing or decreasing the amount to which the Court has found the attorney reasonably entitled. 487 F.2d at 168. Lindy I and Lindy II involved questions pertaining to the award of attorneys’ fees from a settlement fund in" }, { "docid": "22096071", "title": "", "text": "those plaintiffs represented by organizations such as CLS which are publicly funded and furnish legal services free of charge to needy citizens. As a general matter, awards of attorneys’ fees where otherwise authorized are not obviated by the fact that individual plaintiffs are not obligated to compensate their counsel. The presence of an attorney-client relationship suffices to entitle prevailing litigants to receive fee awards. Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976); Brandenburger v. Thompson, 494 F.2d 885, 889 (9th Cir. 1974); Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 538-39 (5th Cir. 1970). Of course, since the object of fee awards is not to provide a windfall to individual plaintiffs, fee awards must accrue to counsel. Hairston v. R & R Apartments, 510 F.2d 1090, 1093 (7th Cir. 1975). The statutory policies underlying the award of fees justify such shifting without regard to whether the individual plaintiff initially assumed the financial burdens of representation. The traditional, and generally applicable, “American Rule” denies successful litigants the possibility of recovering fees from their opponents. Beyond the applicability of several narrow judicially recognized exceptions to the American Rule, the Supreme Court insists that Congress must affirmatively authorize fee awards. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Congress, in fact, has often taken up the cudgel and authorized or mandated fee awards in suits brought under diverse statutes. See id. at 260 n. 33, 95 S.Ct. 1612. Typically, congressionally approved awards are designed to encourage private enforcement of individual rights and to deter socially harmful conduct. For example, Congress, in passing the Civil Rights Act of 1964, authorized fee awards for “private attorneys general” who might otherwise be deterred from bringing suit because of the burdensome costs of litigation. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-02, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam). More recently, Congress responded to the Supreme Court’s decision in Alyeska Pipeline by closing “gaps” left in other civil rights laws and authorized the award of attorneys’ fees in actions brought under several" }, { "docid": "381586", "title": "", "text": "U.S. at 432, 91 S.Ct. 849. We likewise fail to reach this question because of insufficient evidence below as to the time in which it takes an employee to progress to higher level jobs. . For examples of such special circumstances said to justify refusal of a back pay award, see Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir., June 20, 1972); Le Blanc v. Southern Bell Tel. & Tel. Co., 333 F. Supp. 602, 610-611 (E.D.La.1971), aff’d, per curiam, 460 F.2d 1228 (5th Cir. 1972). B OREM AN, Senior Circuit Judge (concurring in part and dissenting in part): I am in agreement with the result reached by Judge Craven in that portion of his opinion which holds that Albe-marle Paper Company has failed to show a business relationship between the racially biased tests administered to pro--spective employees, and its personnel requirements. However, from that portion of his opinion reversing the district court’s refusal to award back pay, I must respectfully dissent. The appellants advance multiple theories in their effort to persuade this court to modify the relief granted below to include an award of back pay. The two arguments approved and adopted by Judge Craven are: first, the equation of § 706(g) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), with § 706(k) of the Act, 42 U.S.C. § 2000e-5(k), which provides for an award of attorney’s fees in the discretion of the court and under which the federal courts have held attorney’s fees are to be awarded as of course, in the absence of “special circumstancesand second, that failure to grant back pay was an abuse of discretion under Robinson v. Lorillard, 444 F.2d 791 (4 Cir. 1971). In Lea v. Cone Mills, 438 F.2d 86, 88 (4 Cir. 1971), this court, over my strenuous objections stated in dissent, extended the holding of the Supreme Court in Newman v. Piggie Park Enterprises, 390 U.S. 400, 402-403, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), that attorney’s fees should ordinarily be granted in suits under Title II of the Act, to include suits" }, { "docid": "23112800", "title": "", "text": "of civil rights litigation. Cf. Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d at 717-720; Lindy Bros. Bldrs., Inc. of Phila. v. American R. and S. San. Corp., supra, 487 F.2d at 167. In the instant case, plaintiffs’ attorneys charge at rates which, in this court’s experience, compare favorably with the rates charged by other attorneys in this area for work involving complex questions of fact and law. Also, these rates reflect the attorneys’ expertise: each of plaintiffs’ attorneys has had considerable experience with civil rights litigation, and their hourly rates fairly reflect their experience. Defendants Bergna and Brown, undoubtedly recognizing the excellent academic and professional backgrounds of plaintiffs’ attorneys, concede that use of the billing rate of $50 an hour in calculating reasonable attorneys’ fees would be appropriate. This figure is only $1.70 an hour less than the average hourly rate which plaintiffs’ attorneys recommend to the court. In light of these facts, the court finds $50 an hour to be an appropriate average hourly rate for use in calculating an award of reasonable attorneys’ fees. Attorneys’ Performance 1. The Contingent Nature of Success Plaintiffs’ attorneys argue that they assumed this case on a contingent fee basis. They contend that any attorneys’ fees award, initially computed on the basis of number of work hours times the average hourly billing rate, must be increased to reflect the contingent nature of their recovering any award. Federal court decisions generally reason that the amount of any award of attorneys’ fees should reflect any contingencies which stood between the attorneys and their deserved fee. E.g., Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974); Lindy Bros. Bldrs., Inc. of Phila. v. American R. and S. San. Corp., 487 F.2d 161, 168 (3rd Cir. 1973); Freeman v. Ryan, 133 U.S.App.D.C. 1, 408 F.2d 1204, 1206 (1969); State of Illinois v. Harper and Row Publishers, Inc., 55 F.R.D. 221 (N.D.I11.1972). These decisions parallel the American Bar Association’s determination that attorneys deserve higher compensation for contingent than for fixed-fee work. Cf. Canon 2 of the Code of Professional Responsibility of the" }, { "docid": "14983771", "title": "", "text": "by this court will properly reflect the role of plaintiffs' counsel in fashioning the terms of the settlement. Defendant’s second argument that the court, in setting the fee award, should not consider the housing and affirmative action programs because they were not prayed for in the complaint, is also without merit. To limit a fee award by considering only those settlement items prayed for in the complaint would stifle the settlement process by discouraging counsel from negotiating on and agreeing to important items which, though not originally contemplated when the action was filed, induce settlement because they are mutually beneficial. Moreover, to so limit a fee award would penalize counsel who advance novel solutions aimed at vindicating important concerns shared by the parties. Plaintiffs’ counsel should be commended, not penalized, for their resourcefulness in securing through the settlement process a result more beneficial than traditional remedies might have achieved. One other point: the preliminary injunction demonstrated that plaintiffs’ claims were not frivolous, unreasonable, or groundless and that they would most likely support some form of permanent relief; therefore, in agreeing to the consent decree, state defendant was not acting gratuitously. Nadeau v. Helgemoe, 581 F.2d at 281. Thus, the court rejects defendant’s suggestion that the award of attorneys’ fees to plaintiffs’ counsel should be diminished because there were beneficial features in the settlement agreement that arguably fall outside the scope of relief prayed for in the complaint. III. CALCULATION OF FEES; TIME AND LABOR REQUIRED; MULTIPLIER This court adopts the method of computing reasonable attorneys’ fees set out in Lindy Bros. Bldrs., Inc. v. Amer. R. & S. San. Corp., 487 F.2d 161 (3d Cir. 1973). The Ninth Circuit approved this method in Brandenburger v. Thompson, 494 F.2d 885, 890 n. 7 (9th Cir. 1974). Under Lindy, the court fixes a reasonable hourly rate for the attorneys’ time and multiplies the hourly rate for each attorney by the number of hours worked. After this “lodestar” sum is reached, the court then considers the contingent nature of the action and the quality of the attorneys’ efforts to determine whether an increase" }, { "docid": "11495499", "title": "", "text": "more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.” Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). This is equally true of Title VII. As we said in a Title VII case, “The allowance of reasonable fees in civil rights cases is an important feature of the enforcement provisions of that Act.” Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002, 1008 (9th Cir. 1972). See also Lea v. Cone Mills Corp., supra, 438 F.2d at 88. Reading section 713(b) to bar allowance of attorneys’ fees whenever good faith reliance could be shown would deter private suits challenging suspect EEOC interpretations of Title VII. At best, such suits are unattractive to private litigants. The issues are often complex; the deference accorded the agency’s interpretation of its governing statute makes success unlikely. Yet it is particularly important that private litigants submit such issues to the courts for determination, for the agency itself will not do so. The agency declined to proceed in this case, for example, but this private litigation resulted in a highly significant contribution to the effective enforcement of the Act. Appellant argues that even if attorneys’ fees were not barred by section 713(b), the award was an abuse of the discretion vested in the district court by section 706(k) since appellant simply obeyed a state statute that was valid when appellant acted. We reject this argument for the reasons already stated. The purpose of the award is not simply to punish the defendants but to encourage individuals injured by discrimination to seek judicial relief, and thus secure enforcement of the Act. Newman v. Piggie Park Enterprises, supra, 390 U.S. at 402, 88 S.Ct. at 696. Trial courts have uniformly rejected the suggestion that they should decline to award attorneys’ fees because the defendant relied upon state law. See LeBlanc v. Southern Beil Telephone & Telegraph Co., 333 F.Supp. 602, 611 (E.D.La.1971), aff’d, 460 F.2d 1228 (5th Cir. 1972); Kober v. Westinghouse Electric Corp., 325 F.Supp. 467, 473-74 (W.D.Pa.1971), aff’d, 480 F.2d" }, { "docid": "23112799", "title": "", "text": "originally requested, but they did obtain a significant concession from defendants as a result of their motion. In the process, they substantially advanced their clients’ interests. The court finds that the attorney time spent on this motion (approximately 50 hours) should be counted in determining a proper award. The Value of the Attorneys’ Services Plaintiff’s attorneys, by affidavit, provide information concerning their individual billing rates for fixed-fee services. The attorneys bill their clients at rates which range from $50 to $65 an hour. This court does not accept the attorneys’ usual billing rates as definitively fixing their billing rates for this litigation. This reluctance follows from the simple fact that attorneys may be leaving the area of their professional expertise in taking on pro bono publico litigation and that, as a result, their billing rates should reflect this fact. As an example, large-firm attorneys who draw $65 an hour for their specialized knowledge of securities regulation should not earn the same figure for § 1983 litigation, unless they have an equivalent type of specialized knowledge of civil rights litigation. Cf. Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d at 717-720; Lindy Bros. Bldrs., Inc. of Phila. v. American R. and S. San. Corp., supra, 487 F.2d at 167. In the instant case, plaintiffs’ attorneys charge at rates which, in this court’s experience, compare favorably with the rates charged by other attorneys in this area for work involving complex questions of fact and law. Also, these rates reflect the attorneys’ expertise: each of plaintiffs’ attorneys has had considerable experience with civil rights litigation, and their hourly rates fairly reflect their experience. Defendants Bergna and Brown, undoubtedly recognizing the excellent academic and professional backgrounds of plaintiffs’ attorneys, concede that use of the billing rate of $50 an hour in calculating reasonable attorneys’ fees would be appropriate. This figure is only $1.70 an hour less than the average hourly rate which plaintiffs’ attorneys recommend to the court. In light of these facts, the court finds $50 an hour to be an appropriate average hourly rate for use in calculating an award of" }, { "docid": "3616354", "title": "", "text": "the professional relationship with the client. (12) Awards in similar cases. Johnson, 488 F.2d at 717-19. The full lodestar approach was developed only over time. Much dispute has occurred, and some still exists, as to which, if any, of the Johnson factors may be considered for purposes of multiplication rather than in the original lodestar computation. See, e.g., Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (Delaware Valley I); Pennsylvania v. Delaware Valley Citizens Council for Clean Air, — U.S. -, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (Delaware Valley II) and authorities collected therein. Therefore, when the Senate Report expressed congressional approval of the Johnson factors, it was not approving the lodestar method, but rather the use of the factors that the Johnson Court employed. The lineage of the lodestar as such is more properly traceable to Lindy Bros. Builders, Inc. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161, 168 (3d Cir.1973), which did in fact describe the product of a reasonable hourly rate and hours actually worked as being the “lodestar of the court’s fee determination,” subject to adjustment for “the contingent nature of success” and “the quality of [the] attorney’s work.” Thus, when the Senate Report expressed congressional approval of the Johnson case as “setting the appropriate standards” it was approving not the lodestar method per se but rather the use of the twelve Johnson factors in some fashion in arriving at the fee. It is the Senate Report’s approval and the Supreme Court’s adoption of that approval of the application of those factors in the other three cases that may be instructive to us in the present dispute. In Stanford Daily, the District Court expressly sought to avoid the Scylla of simply accepting the attorneys’ account of the value of the legal services which they have provided[, and] the Charybdis of decreasing reasonable fees because the attorneys conducted the litigation more as an act pro bono publico than as an effort of securing a large monetary return. 64 F.R.D. at 681 (citations omitted)." }, { "docid": "23112789", "title": "", "text": "MEMORANDUM AND ORDER PECKHAM, District Judge. On October 5, 1972, this court ruled on plaintiffs’ motion for summary judgment and granted declaratory relief which upheld the constitutional rights of individuals, not suspected of any crime, to be free from unwarranted police searches and seizures. The Stanford Daily v. Zurcher, 353 F.Supp. 124 (N.D. Cal.1972). Subsequently, on August 10, 1973, the court granted plaintiffs’ motion for an award of reasonable attorneys’ fees. The Stanford Daily v. Zurcher, 366 F.Supp. 18 (N.D.Cal.1973). Now, the court must determine what amount actually constitutes reasonable attorneys’ fees. The federal appellate courts, recognizing the difficulty of weighing the factors relevant to the determination of reasonable fees, grant federal district courts wide discretion in setting attorneys’ fees. See, e.g., Kelly v. Guinn, 456 F.2d 100, 111 (9th Cir. 1972); Cato v. Parham, 403 F.2d 12, 16 (8th Cir. 1968); Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 221 (9th Cir. 1964). However, district courts’ exercise of this grant of discretionary authority must be kept within certain evidentiary bounds. See, e.g., Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The court must avoid the Scylla of simply accepting the attorneys’ account of the value of the legal services which they have provided. “The court cannot properly fix attorneys’ fees merely by multiplying the hourly rate for each attorney times the number of hours he worked on the case.” Lindy Bros. Bldrs., Inc. of Phila. v. American R. and S. San. Corp., 487 F.2d 161 (3rd Cir. 1973). At the same time, the court must avoid the Charybdis of decreasing reasonable fees because the attorneys conducted the litigation more as an act pro bono publico than as an effort at securing a large monetary return. Cf. Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.N.D.1972). The rationale of awarding reasonable attorneys fees, after all, springs from the need for placing the legal defense of certain constitutional principles and some congressional policies on an equal footing with the protection of private interests. Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S." }, { "docid": "23112790", "title": "", "text": "Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The court must avoid the Scylla of simply accepting the attorneys’ account of the value of the legal services which they have provided. “The court cannot properly fix attorneys’ fees merely by multiplying the hourly rate for each attorney times the number of hours he worked on the case.” Lindy Bros. Bldrs., Inc. of Phila. v. American R. and S. San. Corp., 487 F.2d 161 (3rd Cir. 1973). At the same time, the court must avoid the Charybdis of decreasing reasonable fees because the attorneys conducted the litigation more as an act pro bono publico than as an effort at securing a large monetary return. Cf. Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.N.D.1972). The rationale of awarding reasonable attorneys fees, after all, springs from the need for placing the legal defense of certain constitutional principles and some congressional policies on an equal footing with the protection of private interests. Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 402, 91 S.Ct. 1999, 29 L.Ed. 619 (1971); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002, 1008 (9th Cir. 1972). See generally Note, Allowance of Attorneys’ Fees in Civil Rights Litigation, 7 Colum.J.L. and Soc.Prob. 381 (1971). The Ninth Circuit, in Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974), suggested that district courts might consider the evidentiary factors listed in two cases from other circuits in determining reasonable attorneys’ fees. One case, Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) (concerning attorneys’ fees in a Title VII action), lists twelve factors: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal service properly; the preclusion of other employment due to acceptance of the case; the customary fee; the contingent or fixed nature of the fee; the time limitations imposed by the client or the case; the amount involved and the results obtained;" }, { "docid": "14188370", "title": "", "text": "intent for prompt and efficient dissemination under the Act. The court concludes that an award of fees is necessary to implement the Act. See Nationwide, 559 F.2d at 715. Accordingly, plaintiff is entitled to an award of attorney’s fees at this time. IV. The Award in this Case [7,8] The determination of a reasonable fee is accomplished by consideration of the twelve factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), and application of the lodestar and multiplier format developed by the Third Circuit, Lindy Bros. Builders Inc. v. American Sanitary Corp., 487 F.2d 161 (3d Cir.1973) (Lindy I), 540 F.2d 102 (3d Cir.1976) (Lindy II). See Manhart v. City of Los Angeles, Dept. of Water and Power, 652 F.2d 904, 907 (9th Cir.1981); 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); Brandenburger v. Thompson, 494 F.2d 885, 890 n. 7 (9th Cir.1974). In Jordan v. United States Dept. of Justice, 691 F.2d 514, 517-18 (D.C. Cir.1982), the Court of Appeals for the District of Columbia specifically adopted this standard for FOIA cases. Initially, the court calculates the lodestar amount by multiplying the hours reasonably expended by a reasonable rate. The reasonableness of the hours and rate are determined by consideration of the twelve Johnson factors: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr, 526 F.2d at 70. However, only those factors actually applicable to the individual case need be considered. Keith v." }, { "docid": "23429166", "title": "", "text": "§ 3612(c), but its view too severely constricts achievement of that goal. The traditional American rule ordinarily disfavors the allowance of attorney fees, Hall v. Cole, 412 U.S. 1, 4, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), but as the Supreme Court has noted in similar contexts, Congress has enacted provisions for attorney fees to encourage individuals injured by racial discrimination to act as “private attorneys general” by seeking judicial relief on their own initiative, thereby providing a method to forcefully vindicate a policy of equal opportunity considered to be of the highest priority. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972); Northcross v. Memphis Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973). We have explicitly held that this policy of encouraging compliance through private action underlies the provision for reasonable attorney fees in § 3612(c). Jeanty v. McKey and Poague, Inc., 496 F.2d 1119, 1121 (7th Cir. 1974). Awarding attorney fees where the plaintiff is unable to bear the expense of litigation even though the legal services are provided at no cost is consistent with and advances this policy. Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970); Stevens v. Dobs, Inc., 373 F.Supp. 618 (E.D.N.C. 1974); Note, Awards of Attorney’s Fees to Legal Aid Offices, 87 Harv.L.Rev. 411 (1973). When free legal services are provided there may be no direct barrier to the courtroom door, but if no fees are awarded, the burden of the costs is placed on the organization providing the services, and it correspondingly may decline to bring such suits and decide to concentrate its limited resources elsewhere, thereby curtailing the forceful application of the Act that Congress sought. Thus, the denial of fees in this situation indirectly cripples the enforcement scheme designed" }, { "docid": "5740131", "title": "", "text": "The trial court has broad discretion to determine reasonable attorneys’ fees and costs. Such a decision is not to be disturbed except for abuse of discretion. Under this narrow standard of review, we reject both the appeal and the cross-appeal, and affirm the judgment and subsequent orders of the district court. The only real issue in this case is whether the district court abused its discretion in awarding the stated amount to the plaintiffs. Title VII confers statutory authority on the court to award attorneys’ fees. Section 706(k), 42 U.S.C. § 2000e-5(k). The trial court’s broad discretion to determine reasonable attorneys’ fees has been well recognized by the circuits. Sangster v. United Air Lines, Inc., 633 F.2d 864 (9th Cir. 1980); In re Gypsum Antitrust Cases, 565 F.2d 1123 (9th Cir. 1977); Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972). In Schaeffer v. San Diego Yellow Gabs, the Ninth Circuit emphasized that the allowance of reasonable fees in Title VII cases is an important feature of the enforcement provisions of the act. The Supreme Court in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), stated that the amount of the award should not be so low that the award would discourage others seeking to attack discriminatory practices. The trial court must consider the congressional objective of giving victims of discrimination access to the courts when determining an appropriate fee award. Due to the trial judge’s familiarity with the litigation, review of the trial court’s exercise of discretion in awarding attorneys’ fees is narrow. The District of Columbia Court of Appeals, en banc, stated: It is common learning that an attorney’s fee award by the District Court will be upset on appeal only if it represents an abuse of discretion. We customarily defer to the District Court’s judgment because an appellate court is not well situated to assess the course of litigation and the quality of counsel. The District Court judge, by contrast, closely monitors the litigation on a day-to-day basis. The Supreme Court long ago observed that" }, { "docid": "3030158", "title": "", "text": "434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). These purposes include, of course, encouraging workers to litigate bona fide cases of employment discrimination while represented by competent attorneys, all in an endeavor to spur the final dismantling of discriminatory practices in the workplace. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). The Seventh Circuit has not adopted any single approach to Title VII fee awards. All of the Circuit Courts of Appeals which have recently considered these issues have ruled that the most appropriate method of measuring attorney’s fees is to calculate the allowable hours worked, and multiply this by a typical hourly billing rate to determine the “lodestar” figure. This lodestar is then subject to upward, or theoretically downward, adjustment based on a number of factors which include but are not limited to the difficulty of the legal issues, the skill of the petitioning attorneys, the quality of their work product, and the time limitations the representation imposed. Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator and Standard Sanitary Corp., 487 F.2d 161, 168-69 (3d Cir. 1973) (Lindy I); Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator and Standard Sanitary Corp., 540 F.2d 102, 116 (3d Cir. 1976) (Lindy II) (en banc); Merola v. Atlantic Rich- field Co., 493 F.2d 292 (3d Cir. 1974); City of Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir. 1977); Grunin v. International House of Pancakes, 513 F.2d 114 (8th Cir. 1975). The Fifth Circuit adopted a slightly different approach, listing twelve factors they considered important for the trial court to consider. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The rulings in these circuits have most recently been adopted in Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980), a Title VII case. This decision has made it clear that the lodestar method is the preferred method of determining a reasonable attorney’s fee. Although the Seventh Circuit has not as yet adopted this approach, nothing in its past decisions would be at odds with this method of calculation." } ]

[ { "docid": "23370877", "title": "", "text": "United States v. Montez, CM 346677, 1 CMR 178; United States v. Nelson, CM 347000, 1 CMR 169; National Fire Insurance Company v. Thompson, 281 US 331, 74 L ed 881, 50 S Ct 288; Funk v. Commissioner, 163 F2d 796, 800 (CA 3rd Cir). We are not, however, to be construed as deciding this issue. We shall assume, for the purpose of deciding whether petitioner’s unauthorized absence was legally terminated, that we do have before us the record of summary court-martial trial at Taegu. Paragraph 146a of the Manual for Courts-Martial, 1949, provides that the condition of absence without leave, having once been shown to exist, may be presumed to have continued in the absence of evidence to the contrary, until the absentee’s return to military control. The problem then, is, what is meant by “return to military control.” The services have consistently held that return by the absentee to his duty station is not necessary to terminate an unauthorized absence status, and that termination is effected by any proper exercise of military control over the absentee. United States v. Arthur, 54 BR 159; United States v. Lofton, 18 BR(ETO) 139; see Army Regulation 600-120, paragraph 8, of May 8, 1951. The services also agree that an absentee’s casual presence at a military installation, unknown to competent authority and for purposes primarily his own, does not end his unauthorized absence. United States v. Keller, 60 BR 335; United States v. Matheron, 53 BR 293. Further, even known presence at a military installation will not constitute termination where the absentee, by design and misrepresentation, conceals his identity or duty status. United States v. Cox, 33 BR 169. These rules seem sensible to us. This case poses a situation not covered by the rules noted above. Competent military authority did exercise control over petitioner, and he did not conceal his identity or duty station. However, he failed to disclose to the authorities his status as an absentee. Solution of this problem must, we think, depend to some extent upon practical considerations. The summary court-martial by which petitioner was convicted was convened" } ]

[ { "docid": "12095626", "title": "", "text": "Reeder, 22 U.S.C.M.A. 11, 46 C.M.R. 11 (1972). See paragraph 19a, Manual for Courts-Martial, United States, 1969 (Revised edition). The second requirement that must be present for the termination of an absence is that the absentee must identify himself properly and must disclose his status as an absentee. United States v. Ray-mo, supra; United States v. Jackson, supra; United States v. Rayle, supra. Both identity as a member of the military and status as an absentee must be divulged. Furnishing information on the former while at the same time concealing, misrepresenting or even remaining silent on the latter would not suffice to supply the requisite degree of knowledge. An exception to this requirement that the absentee must affirmatively divulge his identity and status would be in those situations where the competent military authority was already aware of the absentee’s status or, having a duty to inquire, could have determined the status by reasonable diligence. United States v. Jackson, supra; United States v. Rayle, supra. The final necessary requirement for the termination of an absence is that the military authority, with full knowledge of the individual’s status as an absentee, exercises control over him. United States v. Raymo, supra. The measure of military control exercised may be as seemingly unimportant as referring the absentee to some other individual to solve his problem. Again an exception would occur if the military authority declined to exercise control over the absentee or was slow in the exer cise of such control. In that event, the Government would not be permitted to deny a termination of absence because of the failure to exercise control. United States v. Jackson, supra; United States v. Rayle, supra. In applying the facts of the instant case to the requirements discussed above, we find a deficiency in each of the three categories. First, the appellant did not present himself to competent military authorities with the intention of terminating his absence and returning to military duty. His whole purpose at Fort Benning was a private one — to obtain a compassionate reassignment and to get paid. He spoke to the E-7," }, { "docid": "16068878", "title": "", "text": "slip op. at 4. The lower court found that the military judge should have explained the law of voluntary termination to Appellant and obtained admissions of fact from him to “unambiguously negate” the applicability of the defense but that the failure to do so did not create a substantial basis in law and fact to reject Appellant’s plea. Id. at 3-4. The lower court characterized the facts in the following fashion: In connection with appellant’s actions in Montana, we note that appellant did not assert that he personally presented himself to a military authority with power to apprehend him, as required by our precedent in Rogers and Coglin. We also note that appellant did not assert that he personally presented himself to his “hometown recruiter,” but only that he “tried to meet up” with him. In neither circumstance did appellant ever submit to actual or constructive military control. As such, appellant’s assertions evince nothing “more than an inchoate desire to return at an earlier date.” United States v. Acemoglu, 21 U.S.C.M.A. 561, 563, 45 C.M.R. 335, 337 (1972).... [W]e conclude that appellant’s unsworn statement raises no more than the “mere possibility” that he terminated his unauthorized absence on one or more occasions. Faircloth, 45 M.J. at 174. Id. at 4. On appeal to this Court, Appellant argues that his unsworn statement raised matter inconsistent with his plea. According to Appellant, the inconsistency was a defense to the extended period of unauthorized absence, and he analogizes the facts of his case to those of United States v. Reeder, 22 C.M.A. 11, 46 C.M.R. 11 (C.M.A.1972). In response, the Government agrees with Appellant that the military judge erred by failing to resolve the apparent inconsistencies between Appellant’s plea and his unsworn statement. However, the Government’s position is that the error was harmless because any inconsistencies do not create a “substantial basis in law or fact” to question the sufficiency of Appellant’s plea. Finally, the Government argues that, even if this Court were to disagree, we should amend the findings of guilt to reflect multiple unauthorized absences, rather than just one, with no" }, { "docid": "18913903", "title": "", "text": "by the absentee to become effective, several factors must be present. First, the absentee must present himself to competent military authority with the intention of returning to military duty. United States v. Jackson, supra; United States v. Rayle, 6 M.J. 836 (NCMR 1979); United States v. Self, 35 C.M.R. 557 (ABR 1965). He must present himself personally, a phone call being insufficient, United States v. Acemoglu, 21 U.S.C.M.A. 561, 45 C.M.R. 335 (1972), but he need not report to a military installation; a recruiting office and a selective service office being sufficient for the purpose. United States v. Kitchen, 5 U.S.C. M.A. 541, 18 C.M.R. 165 (1955); United States v. Raymo, 1 M.J. 31 (CMA 1975). Even a return to a military reservation does not automatically result in a termination as an absentee’s casual presence on an installation for his own private purpose will not satisfy this requirement. United States v. Jackson, supra; United States v. Self, supra. Additionally, the competent military authority to whom the absentee must present himself must be someone with authority to apprehend, e. g., a commissioned officer, United States v. Raymo, supra; a noncommissioned officer United States v. Kitchen, supra; a military policeman, see United States v. Reeder, 22 U.S.C.M.A. 11, 46 C.M.R. 11 (1972). See paragraph 192, Manual for Courts Martial, United States, 1969 (Revised edition). The second requirement that must be present for the termination of an absence is that the absentee must identify himself properly and must disclose his status as an absentee. United States v. Raymo, supra; United States v. Jackson, supra; United States v. Rayle, supra. Both identity as a member of the military and status as an absentee must be divulged. Furnishing information on the former while at the same time concealing, misrepresenting or even remaining silent on the latter would not suffice to supply the requisite degree of knowledge. An exception to this requirement that the absentee, must affirmatively divulge his identity and status would be in those situations where the competent military authority was already aware of the absentee’s status or, having a duty to inquire, could" }, { "docid": "12130887", "title": "", "text": "is also constructively terminated when an absentee presents himself to military authorities with full intention of returning to duty, even when no control is exercised by military authorities, United States v. Reeder, 22 U.S.C.M.A. 11, 46 C.M.R. 11 (1972), the rationale being that, “. . .it would be manifestly unjust not to terminate an unauthorized absence where the accused did everything within his power to surrender only to have the military authority refuse to receive him or exercise control over him.” United States v. Self, 35 C.M.R. 557, 560 (A.B.R.1965). Cf. United States v. Lanphear, 23 U.S.C.M.A. 338, 49 C.M.R. 742 (1975). Appellant’s presence at the Naval Regional Medical Center cannot be viewed as “casual.” See United States v. Jackson, supra, at 192, 2 C.M.R. at 98. Appellant made known fully his identity and unauthorized absence status. Appellant’s testimony that he went to Portsmouth to surrender himself and that he made this fact known to the two Navy doctors is essentially unrebutted. That appellant wanted to surrender is also supported by the stipulated testimony of Father Lister. See Defense Exhibit A. The two Navy doctors were authorized to take custody of appellant and to terminate his unauthorized absence. Article .7, Uniform Code of Military Justice, 10 U.S.C. § 807; Paragraph 19, Manual for Courts-Martial, United States, 1969 (Revised edition); Article 3430100, Bureau of Naval Personnel Manual. In addition, the two officers exercised some control over appellant — the first doctor by taking him to consult with the psychiatrist, and the psychiatrist by instructing appellant to return on the following Monday. In summary, we conclude that appellant’s surrender was complete and his unauthorized absence terminated when he presented himself at the Naval Regional Medical Center and indicated his desire to turn himself in. See United States v. Raymo, 1 M.J. 31 (C.M.A.1975); United States v. Acemoglu, 21 U.S.C.M.A. 561, 45 C.M.R. 335 (1972); United States v. Kitchen, 5 U.S.C.M.A. 541, 18 C.M.R. 165 (1955). Consequently, it is necessary that the findings of guilty be modified to reflect this fact. Accordingly, the findings of guilty as to the Charge and only so" }, { "docid": "15878700", "title": "", "text": "necessary to terminate an unauthorized absence status, and that termination is effected by any proper exercise of military control over the absentee. United States v. Arthur, 54 B.R. 159; United States v. Lofton, 18 B.R. (ETO) 139. United States v. Jackson, 1 U.S.C.M.A. 190, 192, 2 C.M.R. 96, 98 (1952). See, also, United States v. Raymo, 1 M.J. 31 (C.M.A. 1975); United States v. Pettis, 12 M.J. 616 (N.M.C. M.R. 1981); United States v. Moyer, 11 M.J. 568 (A.F.C.M.R. 1981); United States v. Coglin, 10 M.J. 670 (A.C.M.R. 1981); United States v. Sandell, 9 M.J. 798 (N.C.M.R. 1980); United States v. Baughman, 8 M.J. 545 (C.G.C.M.R. 1979); United States v. Rayle, 6 M.J. 836 (N.C.M.R. 1979). The Army Court of Military Review has gone a step further than Jackson, supra, saying that were an absentee to voluntarily attempt to surrender himself to military authority, even an unsuccessful attempt by that military authority to exercise military control over him would be sufficient to terminate his absence. United States v. Coglin, supra, 10 M.J. at p. 673. See also, United States v. Moyer, supra, 11 M.J. at p. 570. Here, however, the accused was not attempting to voluntarily surrender to military authority. Rather, he told two superiors who had gone to his residence in an effort to convince him to terminate his absence that he would not do so. Further, he specifically refused to submit to his first sergeant’s attempts to exercise military control over him by ordering him, first, to return to the base, and then to put on his uniform and accompany him back to the base. In the absence of an attempt to voluntarily surrender, an AWOL may nevertheless be terminated by the absentee’s submission to lawful military orders. United States v. Raymo, supra, 1 M.J. at p. 33. When he refuses to submit to such orders his absence is not terminated because, having thwarted an attempted exercise of military control over him, he was never under military control. United States v. Coglin, supra, 10 M.J. at p. 673; United States v. Sandell, supra, 9 M.J. at p. 800;" }, { "docid": "6772578", "title": "", "text": "Treasure Island. We conclude that advice and encouragement were provided to Seaman Recruit Claussen, but no order was given by the chaplain. See, United States v. Moyer, 11 M.J. 568 (A.F.C.M.R.1981); United States v. Coglin, 10 M.J. 670 (A.C.M.R.1981); United States v. Self, 35 C.M.R. 557 (A.B.R.1965). As no order was given to appellant, his adherence to the advice and encouragement of Lieutenant L., does not constitute submission to an order. Consequently, the appellant did not submit to an order so as to terminate the unauthorized absence prior to the date alleged in the specification. For the foregoing reasons, we conclude that appellant’s assignment of error is without merit. The factual situation does raise the collateral issue as to whether Seaman Recruit Claussen voluntarily terminated his unauthorized absence status when he was interviewed by Lieutenant L. Consequently, we believe another issue to be: DID THE APPELLANT VOLUNTARILY TERMINATE HIS UNAUTHORIZED ABSENCE? We conclude that he did not voluntarily terminate his unauthorized absence. The legal principles relative to this determination were enumerated by Senior Judge Jones in United States v. Coglin, 10 M.J. 670 (A.C.M.R.1981) and were favorably endorsed by the Air Force Court of Military Review in United States v. Moyer, supra. Coglin states that for a voluntary termination initiated by the absentee to become effective, three factors must be present. First, the absentee must present himself to competent military authority with the intention of returning to military duty. United States v. Jackson [1 U.S.C. M.A. 190, 2 C.M.R. 96 (1952)], supra; United States v. Rayle, 6 M.J. 836 (N.C. M.R.1979); United States v. Self, 35 C.M.R. 557 (A.B.R.1965). He must present himself personally, a phone call being insufficient, United States v. Acemoglu, 21 U.S.C.M.A. 561, 45 C.M.R. 335 (1972), but he need not report to a military installation; a recruiting office and a selective service office being sufficient for the purpose. United States v. Kitchen, 5 U.S.C.M.A. 541, 18 C.M.R. 105 (1955); United States v. Raymo, 1 M.J. 31 (C.M.A.1975). Even a return to a military reservation does not automatically result in a termination as an absentee’s casual presence" }, { "docid": "18913904", "title": "", "text": "to apprehend, e. g., a commissioned officer, United States v. Raymo, supra; a noncommissioned officer United States v. Kitchen, supra; a military policeman, see United States v. Reeder, 22 U.S.C.M.A. 11, 46 C.M.R. 11 (1972). See paragraph 192, Manual for Courts Martial, United States, 1969 (Revised edition). The second requirement that must be present for the termination of an absence is that the absentee must identify himself properly and must disclose his status as an absentee. United States v. Raymo, supra; United States v. Jackson, supra; United States v. Rayle, supra. Both identity as a member of the military and status as an absentee must be divulged. Furnishing information on the former while at the same time concealing, misrepresenting or even remaining silent on the latter would not suffice to supply the requisite degree of knowledge. An exception to this requirement that the absentee, must affirmatively divulge his identity and status would be in those situations where the competent military authority was already aware of the absentee’s status or, having a duty to inquire, could have determined the status by reasonable diligence. United States v. Jackson, supra; United States v. Rayle, supra. The final necessary requirement for the termination of an absence is that the military authority, with full knowledge of the individual’s status as an absentee, exercises control over him. United States v. Raymo, supra. The measure of military control exercised may be as seemingly unimportant as referring the absentee to some other individual to solve his problem. Again an exception would occur if the military authority declined to exercise control over the absentee or was slow in the exercise of such control. In that event, the Government would not be permitted to deny a termination of absence because of the failure to exercise control. United States v. Jackson, supra; United States v. Rayle, supra [footnote omitted]. United States v. Coglin, 10 M.J. 670, 672-673 (ACMR 1981). Applying the foregoing law to the facts related by the accused, it is clear that although he presented himself to the recruiter, presumably an NCO authorized to apprehend, and disclosed his status" }, { "docid": "12104153", "title": "", "text": "GLADIS, Judge: Contrary to his pleas, the accused was convicted of an unauthorized absence of more than 10 months, in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886, and sentenced to a bad-conduct discharge, confinement at hard labor for 2 months, and 60 days restriction. The convening authority approved the sentence but probationally suspended the discharge and restriction. The officer exercising general court-martial jurisdiction approved the sentence as approved by the convening authority. The accused was charged with an unauthorized absence from 17 April 1978 until 9 March 1979. He contends that the absence was terminated in July or August 1978 by his surrender to a recruiter. We reject his contention and affirm, finding that his submission to military control in the summer of 1978 was incomplete. The evidence shows that while an unauthorized absentee in the summer of 1978, the accused telephoned a recruiter and told him he wished to surrender. Pursuant to the recruiter’s instructions the accused presented himself at the recruiting office. The recruiter telephoned a nearby reserve center and arranged for the accused to surrender there to a captain who would obtain transportation for him to his duty station. The accused went to the reserve center, entered, became frightened, and departed before presenting himself to anyone. As we noted in United States v. Rayle, 6 M.J. 836 (N.C.M.R. 1979), the termination of an unauthorized absence is effected by any proper exercise of military control over the absentee. United States v. Jackson, 1 U.S.C.M.A. 190, 2 C.M.R. 96 (1952). An absence is also constructively terminated when an absentee presents himself to military authorities with full intention of returning to duty, even when no control is exercised by military authorities, the rationale being that it would be manifestly unjust not to terminate an unauthorized absence where the absentee did everything within his power to surrender only to have the military authority refuse to receive him or exercise control over him. This is not a case in which military authority refused to exercise control over an absentee who did everything within his power to" }, { "docid": "12130886", "title": "", "text": "(R. 24). This first doctor took appellant down the hall to talk to a Navy psychiatrist. Appellant stated that he told this second officer his name, that he was absent from his ship since 5 October, and that he was turning himself in. (R. 19). The psychiatrist discussed with appellant his reasons for not reporting in and for taking the pills. The psychiatrist then told appellant that he had to leave and for appellant to return the following Monday. Appellant indicated that he asked the psychiatrist where he should go and was told to go back to the Sacred Heart Rectory until Monday. (R. 19-20). When appellant left the psychiatrist’s office, Father Lister had departed. Appellant picked up his service record from on top of his sea bag in a passageway and eventually returned to Findlay, Ohio. He was absent an additional 22 months. The termination of an unauthorized absence is effected by any proper exercise of military control over the absentee. United States v. Jackson, 1 U.S.C.M.A. 190, 2 C.M.R. 96 (1952). An absence is also constructively terminated when an absentee presents himself to military authorities with full intention of returning to duty, even when no control is exercised by military authorities, United States v. Reeder, 22 U.S.C.M.A. 11, 46 C.M.R. 11 (1972), the rationale being that, “. . .it would be manifestly unjust not to terminate an unauthorized absence where the accused did everything within his power to surrender only to have the military authority refuse to receive him or exercise control over him.” United States v. Self, 35 C.M.R. 557, 560 (A.B.R.1965). Cf. United States v. Lanphear, 23 U.S.C.M.A. 338, 49 C.M.R. 742 (1975). Appellant’s presence at the Naval Regional Medical Center cannot be viewed as “casual.” See United States v. Jackson, supra, at 192, 2 C.M.R. at 98. Appellant made known fully his identity and unauthorized absence status. Appellant’s testimony that he went to Portsmouth to surrender himself and that he made this fact known to the two Navy doctors is essentially unrebutted. That appellant wanted to surrender is also supported by the stipulated testimony of" }, { "docid": "12104155", "title": "", "text": "surrender. Here the recruiter attempted to exercise control and assist the accused by arranging for his surrender to an officer who would obtain transportation for him to his duty station. His efforts were thwarted by the failure of the accused to cooperate. In United States v. Raymo, 1 M.J. 31 (C.M.A. 1975), the Court of Military Appeals observed that the failure of a military officer authorized to apprehend an absentee to do so when the absentee presented himself for the purpose of surrendering was not determinative of the issue of termination because the officer effectively exercised military control over the accused by an alternate means, directing him to go and see the FBI. When the accused complied, his submission to military control was complete. The Court found that the conjunction of the two circumstances terminated the absence. Although an accused may constructively terminate an absence when he does everything in his power to surrender and military authority refuses to accept him, he cannot justifiably claim a constructive termination when he thwarts the efforts of those who are attempting to assist him to surrender by failing to cooperate with their efforts. This case is distinguishable from those in which the absentee did everything in his power to surrender, and was not accepted after complying with all directions, see United States v. Raymo, supra, and United States v. Kitchen, 5 U.S.C.M.A. 541, 18 C.M.R. 165 (1955), or not accepted and told to return at a later date, United States v. Rayle, supra. It is also distinguishable from those cases in which the absentee contends that military authority made no effort to exercise control over him when he attempted to surrender. See United States v. Reeder, 22 U.S.C.M.A. 11, 46 C.M.R. 11 (1972). When there is an attempt to exercise military control over an absentee and he does not completely submit, the absence is not constructively terminated. Finding an incomplete submission to the attempted exercise of control in this case, we reject the accused’s claim of constructive termination. Accord, United States v. Gardenier, No. 78 0894 (N.C.M.R. 16 November 1978) (unpublished). Accordingly, the" }, { "docid": "6772579", "title": "", "text": "in United States v. Coglin, 10 M.J. 670 (A.C.M.R.1981) and were favorably endorsed by the Air Force Court of Military Review in United States v. Moyer, supra. Coglin states that for a voluntary termination initiated by the absentee to become effective, three factors must be present. First, the absentee must present himself to competent military authority with the intention of returning to military duty. United States v. Jackson [1 U.S.C. M.A. 190, 2 C.M.R. 96 (1952)], supra; United States v. Rayle, 6 M.J. 836 (N.C. M.R.1979); United States v. Self, 35 C.M.R. 557 (A.B.R.1965). He must present himself personally, a phone call being insufficient, United States v. Acemoglu, 21 U.S.C.M.A. 561, 45 C.M.R. 335 (1972), but he need not report to a military installation; a recruiting office and a selective service office being sufficient for the purpose. United States v. Kitchen, 5 U.S.C.M.A. 541, 18 C.M.R. 105 (1955); United States v. Raymo, 1 M.J. 31 (C.M.A.1975). Even a return to a military reservation does not automatically result in a termination as an absentee’s casual presence on an installation for his own private purpose will not satisfy this requirement. United States v. Jackson, supra; United States v. Self, supra. Additionally, the competent military authority to whom the absentee must present himself must be someone with authority to apprehend, e.g., a commissioned officer, United States v. Raymo, supra; a noncommissioned officer, United States v. Kitchen, supra; a military policeman, see United States v. Reeder, 22 U.S.C.M.A. 11, 46 C.M.R. 11 (1972). See paragraph 19a, Manual for Courts-Martial, United States, 1969 (Revised edition). The second requirement that must be present for the termination of an absence is that the absentee must identify himself properly and must disclose his status as an absentee. United States v. Raymo, supra; United States v. Jackson, supra; United States v. Rayle, supra. Both identity as a member of the military and status as an absentee must be divulged. Furnishing information on the former while at the same time concealing, misrepresenting or even remaining silent on the latter would not suffice to supply the requisite degree of knowledge. An" }, { "docid": "12104156", "title": "", "text": "who are attempting to assist him to surrender by failing to cooperate with their efforts. This case is distinguishable from those in which the absentee did everything in his power to surrender, and was not accepted after complying with all directions, see United States v. Raymo, supra, and United States v. Kitchen, 5 U.S.C.M.A. 541, 18 C.M.R. 165 (1955), or not accepted and told to return at a later date, United States v. Rayle, supra. It is also distinguishable from those cases in which the absentee contends that military authority made no effort to exercise control over him when he attempted to surrender. See United States v. Reeder, 22 U.S.C.M.A. 11, 46 C.M.R. 11 (1972). When there is an attempt to exercise military control over an absentee and he does not completely submit, the absence is not constructively terminated. Finding an incomplete submission to the attempted exercise of control in this case, we reject the accused’s claim of constructive termination. Accord, United States v. Gardenier, No. 78 0894 (N.C.M.R. 16 November 1978) (unpublished). Accordingly, the findings of guilty and sentence as approved on review below are affirmed. Senior Judge DUNBAR and Judge GREGORY concur." }, { "docid": "6772575", "title": "", "text": "his unauthorized absence. The interview took place at the chaplain’s command — the Naval Communications Station in Stockton, California. Its scope encompassed appellant’s problems prior to and during his active duty service. Appellant was not apprehended by the chaplain, nor did he offer or intend to surrender to the chaplain. Both understood that the chaplain was providing guidance to the appellant in his capacity as a spiritual advisor. Appellate defense counsel asserts the military judge erred by not conducting a further inquiry into the providency of the plea after the stipulated testimony of the chaplain was admitted during presentencing as Defense Exhibit B. Specifically, the contention is that “the stipulation raised the possibility that the chaplain may have exercised sufficient control over appellant to terminate his unauthorized absence at Stockton...” Defense brief. The exact words of the chaplain in Defense Exhibit B that appellate defense counsel asserts mandated further inquiry were: After discussing the situation, John [the appellant] agreed that he should surrender himself to military authorities. I made arrangements for him to surrender himself at the gate at Naval Station, Treasure Island, which he did. Brackets supplied. The assigned issue, consequently, in this case is: WAS THE APPELLANT’S UNAUTHORIZED ABSENCE TERMINATED BY THE EXERCISE OF MILITARY CONTROL OVER HIM BY THE NAVY CHAPLAIN? We conclude that the Navy chaplain did not exercise any military control over the appellant. An unauthorized absence may be terminated by a return to military control. United States v. Jackson, 1 U.S.C.M.A. 190, 2 C.M.R. 96 (1952). A meeting between an unauthorized absentee and military personnel who know of his status and who possess authority to apprehend, pursuant to Article 7 of the UCMJ, 10 U.S.C. § 807, does not necessarily terminate the absence. United States v. Sandell, 9 M.J. 798 (N.C.M.R.1980); United States v. Pettersen, 14 M.J. 608 (A.F.C.M.R. 1982); United States v. Self, 35 C.M.R. 557 (A.B.R.1965); and United States v. Johnstone, 8 C.M.R. 401 (A.B.R.1953). But, once an absentee is given orders by military personnel authorized to apprehend, by which the absentee can terminate his absence and once the absentee submits to" }, { "docid": "15878699", "title": "", "text": "situated. The Lynch, supra, holding and the remedy afforded by the Court of Military Appeals will be applied not only in this case, but in all similar cases properly before this Court, wherein the convictions are not final. Here, both the convening authority who acted as magistrate and his staff judge advocate, who conducted the pretrial confinement hearing and advised the convening authority, were, by definition under Lynch, supra, disqualified from performing these functions. Consequently, the convening authority’s decision to continue the accused’s incarceration was of no legal effect. Before disposing of the remaining issues in this case, we order that the accused’s approved sentence be credited with 21 days, the period of time from which the accused’s release would have been required in the absence of a pretrial confinement hearing until he was, in fact, released. II The next question we address is whether a lawful order to an absentee to return to duty will terminate his absence. The services have consistently held that return by the absentee to his duty station is not necessary to terminate an unauthorized absence status, and that termination is effected by any proper exercise of military control over the absentee. United States v. Arthur, 54 B.R. 159; United States v. Lofton, 18 B.R. (ETO) 139. United States v. Jackson, 1 U.S.C.M.A. 190, 192, 2 C.M.R. 96, 98 (1952). See, also, United States v. Raymo, 1 M.J. 31 (C.M.A. 1975); United States v. Pettis, 12 M.J. 616 (N.M.C. M.R. 1981); United States v. Moyer, 11 M.J. 568 (A.F.C.M.R. 1981); United States v. Coglin, 10 M.J. 670 (A.C.M.R. 1981); United States v. Sandell, 9 M.J. 798 (N.C.M.R. 1980); United States v. Baughman, 8 M.J. 545 (C.G.C.M.R. 1979); United States v. Rayle, 6 M.J. 836 (N.C.M.R. 1979). The Army Court of Military Review has gone a step further than Jackson, supra, saying that were an absentee to voluntarily attempt to surrender himself to military authority, even an unsuccessful attempt by that military authority to exercise military control over him would be sufficient to terminate his absence. United States v. Coglin, supra, 10 M.J. at p. 673." }, { "docid": "18913902", "title": "", "text": "offense, which was complete on 7 December 1978. United States v. Emerson, 1 U.S.C.M.A. 43, 1 C.M.R. 43 (1951). Our concern is the duration of the absence to which the accused pled guilty. While not an element of the offense, the duration of the absence is an aggravating circumstance which, when properly pleaded and proved, may authorize a greater maximum punishment. United States v. Lovell, 7 U.S.C.M.A. 445, 22 C.M.R. 235 (1956). In this case, if the encounter between the accused and the recruiter resulted in a return to military control, the AWOL offense of which the accused stands convicted would not authorize the approved bad conduct discharge. The legal principles relevant to our determination were well summarized by Senior Judge Jones in a recent decision of the Army Court of Military Review: It has long been a principle of military law that an unauthorized absence may be terminated by any proper exercise of military control over an absentee. United States v. Jackson, 1 U.S.C.M.A. 190, 2 C.M.R. 96 (1952). For a voluntary termination initiated by the absentee to become effective, several factors must be present. First, the absentee must present himself to competent military authority with the intention of returning to military duty. United States v. Jackson, supra; United States v. Rayle, 6 M.J. 836 (NCMR 1979); United States v. Self, 35 C.M.R. 557 (ABR 1965). He must present himself personally, a phone call being insufficient, United States v. Acemoglu, 21 U.S.C.M.A. 561, 45 C.M.R. 335 (1972), but he need not report to a military installation; a recruiting office and a selective service office being sufficient for the purpose. United States v. Kitchen, 5 U.S.C. M.A. 541, 18 C.M.R. 165 (1955); United States v. Raymo, 1 M.J. 31 (CMA 1975). Even a return to a military reservation does not automatically result in a termination as an absentee’s casual presence on an installation for his own private purpose will not satisfy this requirement. United States v. Jackson, supra; United States v. Self, supra. Additionally, the competent military authority to whom the absentee must present himself must be someone with authority" }, { "docid": "12095625", "title": "", "text": "military duty. United States v. Jackson, supra; United States v. Rayle, 6 M.J. 836 (N.C. M.R. 1979); United States v. Self, 35 C.M.R. 557 (A.B.R. 1965). He must present himself personally, a phone call being insufficient, United States v. Acemoglu, 21 U.S.C.M.A. 561, 45 C.M.R. 335 (1972), but he need not report to a military installation; a recruiting office and a selective service office being sufficient for the purpose. United States v. Kitchen, 5 U.S.C.M.A. 541, 18 C.M.R. 105 (1955); United States v. Raymo, 1 M.J. 31 (C.M.A. 1975). Even a return to a military reservation does not automatically result in a termination as an absentee’s casual presence on an installation for his own private purpose will not satisfy this requirement. United States v. Jackson, supra; United States v. Self, supra. Additionally, the competent military authority to whom the absentee must present himself must be someone with authority to apprehend, e. g., a commissioned officer, United States v. Raymo, supra; a noncommissioned officer, United States v. Kitchen, supra; a military policeman, see United States v. Reeder, 22 U.S.C.M.A. 11, 46 C.M.R. 11 (1972). See paragraph 19a, Manual for Courts-Martial, United States, 1969 (Revised edition). The second requirement that must be present for the termination of an absence is that the absentee must identify himself properly and must disclose his status as an absentee. United States v. Ray-mo, supra; United States v. Jackson, supra; United States v. Rayle, supra. Both identity as a member of the military and status as an absentee must be divulged. Furnishing information on the former while at the same time concealing, misrepresenting or even remaining silent on the latter would not suffice to supply the requisite degree of knowledge. An exception to this requirement that the absentee must affirmatively divulge his identity and status would be in those situations where the competent military authority was already aware of the absentee’s status or, having a duty to inquire, could have determined the status by reasonable diligence. United States v. Jackson, supra; United States v. Rayle, supra. The final necessary requirement for the termination of an absence is" }, { "docid": "12095624", "title": "", "text": "of appellant’s tour of duty in Korea. Sergeant Montgomery was subsequently transferred to Fort Benning. By stipulation he testified that he saw appellant on several occasions during a two-week period shortly after he arrived at Fort Benning and that he advised appellant on how to obtain a compassionate reassignment. The stipulated testimony does not indicate whether Sergeant Montgomery knew appellant was AWOL when he was at Fort Benning. Assuming, as appellant maintains, that Sergeant Montgomery knew he was AWOL, it is significant that appellant states he left Fort Benning when Sergeant Montgomery advised him to turn himself in or he, the sergeant, would turn him in. It has long been a principle of military law that an unauthorized absence may be terminated by any proper exercise of military control over an absentee. United States v. Jackson, 1 U.S.C.M.A. 190, 2 C.M.R. 96 (1952). For a voluntary termination initiated by the absentee to become effective, several factors must be present. First, the absentee must present himself to competent military authority with the intention of returning to military duty. United States v. Jackson, supra; United States v. Rayle, 6 M.J. 836 (N.C. M.R. 1979); United States v. Self, 35 C.M.R. 557 (A.B.R. 1965). He must present himself personally, a phone call being insufficient, United States v. Acemoglu, 21 U.S.C.M.A. 561, 45 C.M.R. 335 (1972), but he need not report to a military installation; a recruiting office and a selective service office being sufficient for the purpose. United States v. Kitchen, 5 U.S.C.M.A. 541, 18 C.M.R. 105 (1955); United States v. Raymo, 1 M.J. 31 (C.M.A. 1975). Even a return to a military reservation does not automatically result in a termination as an absentee’s casual presence on an installation for his own private purpose will not satisfy this requirement. United States v. Jackson, supra; United States v. Self, supra. Additionally, the competent military authority to whom the absentee must present himself must be someone with authority to apprehend, e. g., a commissioned officer, United States v. Raymo, supra; a noncommissioned officer, United States v. Kitchen, supra; a military policeman, see United States v." }, { "docid": "16068884", "title": "", "text": "the congressional rationale buttressing Article 45, UCMJ. “The statute ‘manifestfs] a congressional intent that guilt be acknowledged consistently from the pleas through the sentence.’ ” Reeder, 22 C.M.A. at 13, 46 C.M.R. at 13 (citing United States v. Thompson, 21 C.M.A. 526, 528, 45 C.M.R. 300, 302 (1972)). As we stated in Pinero, Article 45, UCMJ, like United States v. Care, 18 C.M.A. 535, 539, 40 C.M.R. 247, 251 (1969), is addressed to the military context: The military justice system takes particular care to test the validity of guilty pleas because the facts and the law are not tested in the crucible of the adversarial process. Further, there may be subtle pressures inherent to the military environment that may influence the manner in which servicemembers exercise (and waive) their rights. The providence inquiry and a judge’s explanation of possible defenses are established procedures to ensure servicemembers knowingly and voluntarily admit to all elements of a formal charge. 60 M.J. at 33. 'As a result, when, either during the plea inquiry or thereafter, and in the absence of prior disavowals, see, e.g., Garcia, 44 M.J. at 499, circumstances raise a possible defense, a military judge has a duty to inquire further to resolve the apparent inconsistency. Turning to the ease at hand, Appellant’s statement raised the possibility that either he surrendered to military authorities and returned to military control, as in Pinero, or that he tried to, as in Reeder. This would have ended Appellant’s initial period of unauthorized absence on or about September 11, 2001, rather than two-and-a-half years later on March 31, 2004. For sure, as the Government argues, the facts are not sufficiently developed in the record to determine whether such a defense was available. Upon further inquiry, the military judge may have found that Appellant did not voluntarily terminate his unauthorized absence at the Air Force base. But Appellant’s statement lays out the elements of a possible defense to a multi-year unauthorized absence. Surrender occurs when a person presents himself to any military authority (whether or not a member of the same service), notifies that authority of" }, { "docid": "6772576", "title": "", "text": "at the gate at Naval Station, Treasure Island, which he did. Brackets supplied. The assigned issue, consequently, in this case is: WAS THE APPELLANT’S UNAUTHORIZED ABSENCE TERMINATED BY THE EXERCISE OF MILITARY CONTROL OVER HIM BY THE NAVY CHAPLAIN? We conclude that the Navy chaplain did not exercise any military control over the appellant. An unauthorized absence may be terminated by a return to military control. United States v. Jackson, 1 U.S.C.M.A. 190, 2 C.M.R. 96 (1952). A meeting between an unauthorized absentee and military personnel who know of his status and who possess authority to apprehend, pursuant to Article 7 of the UCMJ, 10 U.S.C. § 807, does not necessarily terminate the absence. United States v. Sandell, 9 M.J. 798 (N.C.M.R.1980); United States v. Pettersen, 14 M.J. 608 (A.F.C.M.R. 1982); United States v. Self, 35 C.M.R. 557 (A.B.R.1965); and United States v. Johnstone, 8 C.M.R. 401 (A.B.R.1953). But, once an absentee is given orders by military personnel authorized to apprehend, by which the absentee can terminate his absence and once the absentee submits to these orders, the unauthorized absence is terminated. See United States v. Raymo, 1 M.J. 31 (C.M.A.1975); United States v. Bryant, 2 C.M.R. 563 (N.B.R.1951); United States v. Loper, 25 C.M.R. 778 (A.F.B.R.1957); United States v. Brown, 24 C.M.R. 585 (A.F.B.R.1957); and United States v. Dupree, 13 C.M.R. 862 (A.F.B.R.1953). But see United States v. Rayle, 6 M.J. 836 (N.C.M.R.1979) and United States v. Gossett, 12 C.M.R. 811 (A.F.B.R.1953). An order tells the service person receiving the order what to do or not to do. United States v. McLaughlin, 14 M.J. 908 (N.M.C.M.R.1982). The nature of the communication and its surrounding circumstances are sufficient to determine if the service person receiving the order has been told what to do or not to do. See United States v. Mitchell, 6 U.S.C.M.A. 599, 20 C.M.R. 295 (1955). Reading the providency inquiry in the record of trial and Defense Exhibit B as an integrated whole, we find the evidence shows that the chaplain only encouraged, as a spiritual adviser, Seaman Recruit Claus-sen to surrender at the Naval Station at" }, { "docid": "12104154", "title": "", "text": "reserve center and arranged for the accused to surrender there to a captain who would obtain transportation for him to his duty station. The accused went to the reserve center, entered, became frightened, and departed before presenting himself to anyone. As we noted in United States v. Rayle, 6 M.J. 836 (N.C.M.R. 1979), the termination of an unauthorized absence is effected by any proper exercise of military control over the absentee. United States v. Jackson, 1 U.S.C.M.A. 190, 2 C.M.R. 96 (1952). An absence is also constructively terminated when an absentee presents himself to military authorities with full intention of returning to duty, even when no control is exercised by military authorities, the rationale being that it would be manifestly unjust not to terminate an unauthorized absence where the absentee did everything within his power to surrender only to have the military authority refuse to receive him or exercise control over him. This is not a case in which military authority refused to exercise control over an absentee who did everything within his power to surrender. Here the recruiter attempted to exercise control and assist the accused by arranging for his surrender to an officer who would obtain transportation for him to his duty station. His efforts were thwarted by the failure of the accused to cooperate. In United States v. Raymo, 1 M.J. 31 (C.M.A. 1975), the Court of Military Appeals observed that the failure of a military officer authorized to apprehend an absentee to do so when the absentee presented himself for the purpose of surrendering was not determinative of the issue of termination because the officer effectively exercised military control over the accused by an alternate means, directing him to go and see the FBI. When the accused complied, his submission to military control was complete. The Court found that the conjunction of the two circumstances terminated the absence. Although an accused may constructively terminate an absence when he does everything in his power to surrender and military authority refuses to accept him, he cannot justifiably claim a constructive termination when he thwarts the efforts of those" } ]

[ { "docid": "23093812", "title": "", "text": "the Constitution alone. * * * * * * “We hold that claimant’s interest or advantage in the high-water level of the St. Croix River as a run-off for tail waters to maintain its power head is not a right protected by law and that the award below based exclusively on the loss in value thereof must be reversed.” On August 23, 1948, Bertha A. Burkhardt, Helene E. Schultz and Hugh F. Gwin, as trustees and successors to the Willow River Power Company, the plaintiff in case No. 45067, filed •& petition in this court, docketed as Congressional Reference No. 17851 and referred to Senate Resolution 231 and Rule 18 of the Revised Rules of this Court, 28 U.S.C.A. In their petition, the plaintiffs repeated substantially -the allegations which comprised the first cause of action in case No. 45067. The United States moved to dismiss the case on the ground that this Court was without jurisdiction to rehear and again decide the issues of fact and law because the issues were res judicata by virtue of a final judgment of this court in the previous case. On February 7, 1949, this court overruled the defendant’s motion to dismiss and rendered an opinion, 82 F.Supp. 333, the conclusion of which is set out below. This report thus far has been merely a recital of facts which is intended to present the whole story of this case without resort to reference except by way of amplifying opinions of this and the Supreme Court of the United States. Under the resolution (S.Res. 231) and pursuant to See. 2509 of the Judicial Code, which in part supersedes Section 151 of the Judicial Code, this court shall “report conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due from the United States to the claimant.” The Government contends that Congress used the term “legal or equitable claim” in Section 2509 of the Judicial Code, supra, in its strict legal sense and not in a broad general sense meaning “moral" } ]

[ { "docid": "17044357", "title": "", "text": "between the powers and duties of the two governments. The decision that neither Meckem nor Anderson, at the time of the accident, was acting as an employee of the United States disposes of the case and does away with any need to discuss the question of negligence. [Emphasis supplied.] That this decision of the Tenth Circuit was quite correct is evidenced by the fact that a few years later the United States Supreme Court, in a similar case, held the same way. See, Maryland for the Use of Levin v. United States, 381 U.S. 41 (1965), vacated on other grounds, 382 U.S. 159 (1965). Hence, the question of legal liability of the United States is res judicata and has been settled adversely to plaintiffs. This, of course, is not the end of the matter. Even though there is no legal liability, in a congressional reference case, Congress desires to be advised whether an “equitable claim” exists. 28 U.S.C. § 2509(c). While it is true that in this sense, the word “equitable” is used in the nonjuridical sense of broad moral responsibility — what the Government ought to do as a matter of good conscience — it is equally true that even under this approach the sovereign’s liability must rest on some unjustified act or omission that caused the claimants’ damage. Absent fault of the conventional common law negligence variety, an award would amount to a pure gratuity. B. Amusement Co. v. United States, 148 Ct. Cl. 337, 342, 180 F. Supp. 386, 390 (1960). To ascertain the proper standards for fixing liability in a given case, it is helpful to take account of the general principles governing the particular area of the law bearing on the claim. In an accident situation such as that at hand those principles are logically to be found in the Federal Tort Claims Act, which makes the United States liable 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" }, { "docid": "17684080", "title": "", "text": "wrongful eviction. Discussion This case is before the hearing officer pursuant to 28 U.S.C. § 1492 (1994), which provides that a bill may be referred by either House of Congress to the chief judge of the Court of Federal Claims for a report in conformity with § 2509 of this title. Under § 2509, the court is directed to report to the appropriate House the facts of the case, including facts bearing upon the question of whether the bar of any statute of limitation should be removed. Further, the court is directed to report conclusions sufficient to inform Congress as to whether the demand is a legal claim, an equitable claim, or a gratuity; and the amount due, if any, from the United States to the claimant. In determining the nature of plaintiffs claim, it is noteworthy that the term “legal claim,” as used in congressional reference proceedings, has no special meaning. The term refers to a demand based upon a substantive right, the invasion of which is redressable at law. White Sands Ranchers of New Mexico v. United States, 14 Cl.Ct. 559, 565 (1988). The term “equitable claim,” however, has a particular meaning when used in congressional reference cases. In general, an equitable claim involves an injury, caused by the government, for which there is no enforceable legal remedy — due, for example, to the sovereign immunity bar or the running of the statute of limitations period. Id. The key to finding an equitable claim, as well as a legal claim, is the fact that the government is at fault: “defendant’s liability must rest on some unjustified act or omission to act which caused plaintiffs damage; otherwise, any award would be a pure gratuity.” B Amusement Co. v. United States, 180 F.Supp. 386, 390, 148 Ct.Cl. 337 (1960). A gratuity, therefore, is essentially a gift; it signifies a payment for which plaintiff has failed to establish a legal or equitable entitlement. White Sands, 14 Cl.Ct. at 565. Although the standards applied in a congressional reference ease are different from regular proceedings in the Court of Federal Claims, the procedural" }, { "docid": "17684081", "title": "", "text": "New Mexico v. United States, 14 Cl.Ct. 559, 565 (1988). The term “equitable claim,” however, has a particular meaning when used in congressional reference cases. In general, an equitable claim involves an injury, caused by the government, for which there is no enforceable legal remedy — due, for example, to the sovereign immunity bar or the running of the statute of limitations period. Id. The key to finding an equitable claim, as well as a legal claim, is the fact that the government is at fault: “defendant’s liability must rest on some unjustified act or omission to act which caused plaintiffs damage; otherwise, any award would be a pure gratuity.” B Amusement Co. v. United States, 180 F.Supp. 386, 390, 148 Ct.Cl. 337 (1960). A gratuity, therefore, is essentially a gift; it signifies a payment for which plaintiff has failed to establish a legal or equitable entitlement. White Sands, 14 Cl.Ct. at 565. Although the standards applied in a congressional reference ease are different from regular proceedings in the Court of Federal Claims, the procedural rules of the court still apply. RCFC App. D, II1. Accordingly, defendant has moved for summary judgment pursuant to RCFC 56. I. Summary Judgment Summary judgment procedures are regarded as a method of securing a just, speedy, and inexpensive determination of an action. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 327 (1986). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Jay v. Secretary of Department of Health and Human Services, 998 F.2d 979 (Fed.Cir.1993). A fact is material if it might significantly affect the outcome of the suit under- the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex, 477 U.S. at 325, 106 S.Ct. at" }, { "docid": "7670758", "title": "", "text": "v. United States, 161 Ct.Cl. 801 (1963) (release); Cannon Constr. Co. v. United States, 319 F.2d 173, 162 Ct.Cl. 94 (1963) (accord and satisfaction). A second issue in this congressional reference case is whether plaintiff has an “equitable” claim within the broad, moral concept as enunciated in Burkhardt v. United States, 84 F.Supp. 553, 113 Ct.Cl. 658, 667 (1949). Despite our conclusion that the release bars any claims of the type cognizable in a court of law or equity, -it does not automatically follow that the same result applies to “equitable” claims in the broad sense. Rocky River Co. v. United States, Ct.Cl. Cong. No. 7-60 (January 22, 1965). See also Drake America Corp. v. United States, Ct.Cl. Cong. No. 11-58 (December 11, 1964). In determining the effect of a release upon “equitable” claims, this court has gone beyond the traditional grounds for avoiding such an instrument (i. e., duress, mutual mistake, etc.) and has looked into the circumstances which gave rise to' the release. For example, in a recent congressional reference case, Rocky River Co. v. United States, supra, this court held that the plaintiffs had a valid “equitable” claim, even though any legal claims were barred by general releases. Our decision was based upon a finding that the releases did not contemplate disposition of the matter in question (damages resulting from the defendant’s failure to remove all unexploded shells from the plaintiffs’ lands). That is, when the releases were executed, the Government and the plaintiffs all had believed that the former would successfully clear the latter’s lands of unexploded shells. Thus, the case was distinguished from Hellander v. United States, 178 F.Supp. 932, 147 Ct.Cl. 550 (1959), where, at the time of execution of a general release, both parties were fully aware of the claim which the plaintiff subsequently attempted to assert. In Hellan-der, also a congressional reference action, the existence of the release was one of the alternative grounds for a decision adverse to the plaintiff. However, even the more flexible rule exemplified by Rocky River Co., supra, does not require, in the case at bar, that" }, { "docid": "21534594", "title": "", "text": "means of the congressional reference process. Throughout the course of this litigation plaintiff had available to it the opportunity to pursue relief under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-613 (1988). And, on the theories on which this case was presented to the hearing officer, that available remedy was fully adequate to provide the relief requested. For example, if duress were present, Modification No. 5 could have been ruled invalid. See Aircraft Assoc. & Mfg. Co. v. United States, 174 Ct.Cl. 886, 357 F.2d 373 (1966). Absent a good reason, congressional reference should not be sanctioned as an alternative to the comprehensive CDA procedure which Congress has mandated for most government contract disputes. Congress has traditionally required that available administrative and legal remedies be exhausted before congressional reference action is undertaken. Glosser, Congressional Reference Cases in the United States Court of Claims: A Historical and Current Perspective, 25 Am.U.L.Rev., 595, 613 (1976). Had Spalding promptly asserted its claim under the CDA, as contractors are expected to do, the answer regarding contract rights now reached by the Review Panel would have occurred at a much earlier date and with far less time and expense for all concerned. It is doubtful that any congressional reference would then have followed but, if so, Congress would at least have had the benefit of a ruling on Spald-ing’s claim under the CDA before making its decision whether to initiate the reference procedure. Thus, Spalding’s failure to exhaust its CDA remedy has unduly prolonged this controversy to the detriment of all concerned and constitutes a further reason to recommend that congressional relief be denied. ANDEWELT, Judge, concurring. As explained in the report of the review panel, this court no longer interprets the term “equitable claim” in 28 U.S.C. § 2509 as synonymous with “moral claim” and will recognize an equitable claim only upon a demonstration of “some unjustified governmental action that caused damage to the claimants.” California Canners & Growers Ass’n v. United States, 9 Cl.Ct. 774, 785 (1986), (quoting Wong v. United States, Cong.Ref. No. 3-74, slip op. at 12-13 (Ct.Cl." }, { "docid": "21534586", "title": "", "text": "However, that is not now our concern. The question we answer here is not whether the destruction of the forest’s regenerative capacity should have been considered at the time of contracting but, rather, whether it was considered. There is nothing in the contract nor in the parties’ dealings to suggest that the parties ever presumed more than a continuance of the conditions necessary to give purpose to a selective cut contract. In short, the contract did not address the conditions that arose; hence, further performance under the contract is excused. Moving on, we turn next to the question whether Spalding’s demand may be recognized as an equitable claim. In congressional reference actions decided by our predecessor institution, the United States Court of Claims, the view was occasionally expressed that an equitable claim was one that rested on considerations of moral responsibility — “what the Government ought to do as a matter of good conscience.” B. Amusement Co. v. United States, 148 Ct.Cl. 337, 342, 180 F.Supp. 386, 390 (1960); Burkhardt v. United States, 113 Ct.Cl. 658, 667, 84 F.Supp. 553, 559 (1949). That view no longer finds favor. The rule now uniformly applied is stated in California Canners & Growers Ass’n v. United States, 9 Cl.Ct. 774, 785 (1986) “ ‘An equitable claim on a Congressional reference must rest on some unjustified governmental act that caused damage to the claimants. Absent a finding of negligence [or wrongdoing] on the part of governmental employees, any award ... would be a gratuity’ ” (quoting Wong v. United States, Cong.Ref. No. 3-74, slip op. at 12-13 (Ct.Cl. Nov. 23, 1977)). Expressed in more concrete terms, what we are talking about are situations in which a claimant, though injured by Government action, either has no remedy under existing law or the remedy has become barred because of a statute of limitations. This, then, is the equitable claim standard that we adhere to. Assessed against this standard, Spald-ing’s situation does not offer a basis for equitable relief. This holds true even if we accept as correct the hearing officer’s conclusions that BLM based Modification No." }, { "docid": "11970324", "title": "", "text": "act that caused damage to the claimants.’ ” California Canners, 9 Cl.Ct. at 785 (review panel) (quoting Wong, Cong.Ref. No. 3-74, slip op. at 12-13). “[Wjhile equitable claims, like legal claims, may be founded on the Constitution, a statute, a regulation, or a common law principle, such bases are not absolutely necessary to warrant relief in equity.” Spalding & Son, Inc. v. United States, 24 Cl.Ct. 112, 132 (1991), rev’d on other grounds, 28 Fed.Cl. 242 (1993) (congressional reference). In aseer- > taining whether INSLAW suffered a wrong, the first step is to determine if INSLAW possessed some right or interest that could have been damaged by the Government’s alleged wrongful actions. In this manner an understanding of INSLAWs legal rights helps inform the court on whether the Government’s alleged actions actually damaged INSLAW sufficiently to justify equitable relief. See, e.g., Kochendorfer v. United States, 193 Ct.Cl. 1045, 1056, 1970 WL 6465 (1970) (“To ascertain the proper standard for fixing liability ... it is helpful to take account of the general principles governing the particular area of law bearing on the claim”). The court’s rulings on INSLAW’s legal claims and interests bear on its final determination of any right to equitable recovery. This is because INSLAW could have been harmed, by any allegedly wrongful acts by the Government, only if INSLAW possessed some legal right or interest that could be subject to harm. If, with respect to a particular issue, INSLAW, as a consequence of the substantive law, possessed no cognizable legal right or interest, no amount of nefarious or malicious acts by the Government could justify equitable recovery. To be damaged a party must hold or own something that can be damaged. Consequently, as this matter moves ahead to trial, INSLAW should keep in mind that the court’s rulings — on Clause 74, the scope of Modification 12, and the legal effect of the contracting officer’s final decision — will influence the analysis of IN-SLAW’s right to recover based on equitable considerations. Finally, INSLAW has taken exception to defendant’s use of legal contract-based defenses to its claims for recovery." }, { "docid": "14622697", "title": "", "text": "caused damage to the claimants. Absent a finding of negligence [or wrong doing] on the part of governmental employees, any award herein would be a gratuity.” Id. at 304 (citations omitted) (alteration in original) (quoting Wong v. United States, No. 3-74, slip op., at 12-13 (Ct.Cl. Nov. 23, 1977)). Later, in Paul v. United States, 20 Cl.Ct. 236 (1990), Judge Harkins carefully reviewed and catalogued the history of congressional reference decisions and concluded, with respect to equitable claims, that: [a]n “equitable claim” is not reported unless the facts create an obligation that the United States should recognize. The obligation may arise from some unjustified government acts that caused damage to the claimants, or it may arise when the government acquires benefits through overreaching by its agents or by misleading representations by government agents that are beyond the scope of delegated authority. In every case when an “equitable claim” was reported with a recommendation for payment of compensation, the particular facts involved reasonably spell out a government obligation. Id. at 269 (footnotes omitted). It is not clear what specific conduct or failures “reasonably spell out a government obligation,” but the references to “unjustified” acts causing damage and to the government receiving “benefits” through the overreaching or misleading actions of its agents provide some concrete indications that what is required is a breach of a duty owed by the Government. The reference in Shane to negligence or wrongdoing harkens back to earlier decisions. In B. Amusement Co. v. United States, 148 Ct.Cl. 337, 180 F.Supp. 386 (1960), the court stated that “defendant’s liability must rest on some unjustified act or omission to act which caused the plaintiffs damage; otherwise any award would be a pure gratuity.” Id. at 342, 180 F.Supp. 386. This was echoed in Webb v. United States, 192 Ct.Cl. 925, 932, 1970 WL 5994 (1970): “[T]he test of ‘equity5 is whether the claim asserted would be recoverable against a private party.” And in Estate of Braude v. United States, 35 Fed.Cl. 99, 109 (1996): “[I]t would appear that Congress intended the phrase ‘equitable claim’ to cover only situations where" }, { "docid": "14622698", "title": "", "text": "clear what specific conduct or failures “reasonably spell out a government obligation,” but the references to “unjustified” acts causing damage and to the government receiving “benefits” through the overreaching or misleading actions of its agents provide some concrete indications that what is required is a breach of a duty owed by the Government. The reference in Shane to negligence or wrongdoing harkens back to earlier decisions. In B. Amusement Co. v. United States, 148 Ct.Cl. 337, 180 F.Supp. 386 (1960), the court stated that “defendant’s liability must rest on some unjustified act or omission to act which caused the plaintiffs damage; otherwise any award would be a pure gratuity.” Id. at 342, 180 F.Supp. 386. This was echoed in Webb v. United States, 192 Ct.Cl. 925, 932, 1970 WL 5994 (1970): “[T]he test of ‘equity5 is whether the claim asserted would be recoverable against a private party.” And in Estate of Braude v. United States, 35 Fed.Cl. 99, 109 (1996): “[I]t would appear that Congress intended the phrase ‘equitable claim’ to cover only situations where there is no adequate remedy at law, the government has engaged in wrongdoing, and the court’s evaluation of that wrongdoing involves a legal determination.” Indeed, as suggested in Gay Street Corp. v. United States, 130 Ct.Cl. 341, 127 F.Supp. 585 (1955), it seems very few things, if any, would constitute a gratuity if “equity” included claims based solely on broad moral considerations without any wrongful act or omission by the Government that had some established juridical reference: We believe the term “gratuity” as used in the congressional reference statute is synonymous with the term “equity” in its moral sense. In its broadest and most general signification, equity denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men- — the rule of doing to all others as we desire them to do to us; or as it is expressed by Justinian-— “to live honestly, to harm nobody, to render to every man his due.” It is therefore the synonym of natural right or justice. But in" }, { "docid": "11970323", "title": "", "text": "reach a beneficial “resolution” of the contractual data rights issue, within the terms of Modification 12 — informally, through the contracting officer, or by means of agency adjudication or a judicial proceeding — rendered no longer operative, for purposes of a legal claim, any limitations on the Government’s rights in the software contemplated in Modification 12. As the succeeding section of this opinion elaborates, this congressional reference will explore at trial whether DOJ impeded, frustrated, or refused to respond unjustifiably or in bad faith to INSLAW’S efforts to resolve the issue of its rights to any enhancements. INSLAW has leveled substantial allegations in this regard, but cannot avoid the fact that it forfeited agency or judicial review under the CDA of the contracting officer’s final decision denying its claims with regard to the contractual data rights issue. 7. INSLAW’s equitable claims The absence of a legal right to recovery does not foreclose INSLAW’s right to a claim under a theory of equitable relief. A right to equitable relief “ ‘must rest on some unjustified governmental act that caused damage to the claimants.’ ” California Canners, 9 Cl.Ct. at 785 (review panel) (quoting Wong, Cong.Ref. No. 3-74, slip op. at 12-13). “[Wjhile equitable claims, like legal claims, may be founded on the Constitution, a statute, a regulation, or a common law principle, such bases are not absolutely necessary to warrant relief in equity.” Spalding & Son, Inc. v. United States, 24 Cl.Ct. 112, 132 (1991), rev’d on other grounds, 28 Fed.Cl. 242 (1993) (congressional reference). In aseer- > taining whether INSLAW suffered a wrong, the first step is to determine if INSLAW possessed some right or interest that could have been damaged by the Government’s alleged wrongful actions. In this manner an understanding of INSLAWs legal rights helps inform the court on whether the Government’s alleged actions actually damaged INSLAW sufficiently to justify equitable relief. See, e.g., Kochendorfer v. United States, 193 Ct.Cl. 1045, 1056, 1970 WL 6465 (1970) (“To ascertain the proper standard for fixing liability ... it is helpful to take account of the general principles governing the particular" }, { "docid": "14622695", "title": "", "text": "to assess whether the claim referred constitutes a legal or equitable claim. The term “legal claim” has the same meaning in a congressional reference as it does in ordinary cases: [T]he words “legal claims” as used in the congressional reference statute imply no special meaning beyond the conventional understanding of that term: a claim based in the invasion of a legal right, that is “one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.” Spalding & Son Inc. v. United States, 28 Fed.Cl. 242, 247 (1993) (quoting Tennessee Elec. Power Co. v. Tennessee Valley Authority, 306 U.S. 118,137-38, 59 S.Ct. 366, 369-70, 83 L.Ed. 543 (1939)). Presumably, if a litigant had a viable legal claim a congressional reference would be unnecessary. For that reason the term seems most appropriate for those claims that this court could recognize but for the bar of the limitations period. It has long been accepted that a congressional reference allows this court to hear a claim that is filed after the limitations period has expired. “[A] simple reference of a case by Congress to this court, of itself, waives no legal defense which the Government, as defendant, may have, excepting only the statute of limitations.” Cruger v. United States, 11 Ct.Cl. 766, 770, 1800 WL 881 (1875); see California Canners & Growers v. United States, 7 Cl.Ct. 69, 98-99 (1984), rev’d on other grounds, 9 Cl.Ct. 774 (1986) (report of review panel). The term “equitable claim,” however, has been the subject of some controversy over the years. In Shane v. United States, 8 Cl.Ct. 294 (1983), the court attempted to summarize the debate: The word “equitable” in a congressional reference case was interpreted originally as meaning a broad moral responsibility on the Government’s part____ This view, however, has eroded over the years and more recent cases have adopted the rule that the United States must commit some “wrong” in order to incur liability under an equitable claim____ “An equitable claim in a Congressional reference must rest on some unjustified governmental act that" }, { "docid": "14622696", "title": "", "text": "is filed after the limitations period has expired. “[A] simple reference of a case by Congress to this court, of itself, waives no legal defense which the Government, as defendant, may have, excepting only the statute of limitations.” Cruger v. United States, 11 Ct.Cl. 766, 770, 1800 WL 881 (1875); see California Canners & Growers v. United States, 7 Cl.Ct. 69, 98-99 (1984), rev’d on other grounds, 9 Cl.Ct. 774 (1986) (report of review panel). The term “equitable claim,” however, has been the subject of some controversy over the years. In Shane v. United States, 8 Cl.Ct. 294 (1983), the court attempted to summarize the debate: The word “equitable” in a congressional reference case was interpreted originally as meaning a broad moral responsibility on the Government’s part____ This view, however, has eroded over the years and more recent cases have adopted the rule that the United States must commit some “wrong” in order to incur liability under an equitable claim____ “An equitable claim in a Congressional reference must rest on some unjustified governmental act that caused damage to the claimants. Absent a finding of negligence [or wrong doing] on the part of governmental employees, any award herein would be a gratuity.” Id. at 304 (citations omitted) (alteration in original) (quoting Wong v. United States, No. 3-74, slip op., at 12-13 (Ct.Cl. Nov. 23, 1977)). Later, in Paul v. United States, 20 Cl.Ct. 236 (1990), Judge Harkins carefully reviewed and catalogued the history of congressional reference decisions and concluded, with respect to equitable claims, that: [a]n “equitable claim” is not reported unless the facts create an obligation that the United States should recognize. The obligation may arise from some unjustified government acts that caused damage to the claimants, or it may arise when the government acquires benefits through overreaching by its agents or by misleading representations by government agents that are beyond the scope of delegated authority. In every case when an “equitable claim” was reported with a recommendation for payment of compensation, the particular facts involved reasonably spell out a government obligation. Id. at 269 (footnotes omitted). It is not" }, { "docid": "6972605", "title": "", "text": "California Canners & Growers, 1 Cl.Ct. at 97. The term “equitable claim” does take on a special meaning as used in congressional reference actions. Bear Claw Tribe, Inc., 36 Fed.Cl. at 186; White Sands Ranchers, 14 Cl.Ct. at 565. The precise meaning of the term “equitable claim” in congressional reference proceedings is, however, rather opaque in the light of the prior decisions of this Court and our predecessor United States Court of Claims. See Jeffrey M. Glosser, Congressional Reference Cases in the United States Court of Claims: A Historical and Current Perspective, 25 Am. L.Rev. 595, 617-27 (1976). Some of the Court’s decisions seem to define equitable claim in the broad sense of the moral obligation of the govern ment. Phillips v. United States, 207 Ct.Cl. 924, 929 (1975); Burkhardt v. United States, 113 Ct.Cl. 658, 84 F.Supp. 553, 559 (1949). The Court’s more recent decisions, however, appear to restrict the availability of equitable relief to those situations in which the government is negligent or otherwise at fault. Sneeden v. United States, 33 Fed.Cl. 303, 309 (1995); Spalding & Son, 28 Fed.Cl. at 250-51; B. Amusement Co. v. United States, 148 Ct.Cl. 337, 180 F.Supp. 386, 390 (1960). Equitable relief in these situations is available when “a claimant, though injured by Government action, either has no remedy under existing law or the remedy has become barred because of a statute of limitations.” Spalding & Son, Inc., 28 Fed.Cl. at 250. A Nature of the Relief Requested In the present action, plaintiff contends that the injury he suffered is due to government fault. Essentially, plaintiffs claim is that, as a result of the arbitrary and capricious actions of the government, the government breached the contract between Dri-Mix and the United States government for MCI’s thereby forcing Dri-Mix into bankruptcy. Plaintiff alleges that, as a result of the bankruptcy, he and the “Dri-Mix group” suffered damages of $6,563,000 for unrecovered losses. Plaintiff further contends that the government’s arbitrary and capricious actions deprived the children of Kanehl financial support for their education. Defendant disputes that plaintiff is due any relief. Plaintiff does not" }, { "docid": "6622750", "title": "", "text": "not have the force and effect of an amendment to the basic law. It can neither add to nor subtract from the requirements of the reference statute. There are several reasons for a House of Congress to refer bills for private claims, and thus defer action until a report is received: (a) the facts and the applicable law are complex and the matter can be illuminated through a court proceeding; (b) the claim should be established by competent evidence, as evaluated by a court; (c) the cognizant congressional committees lack the time, facilities, and expertise necessary to hear the evidence and make determinations on the issues; (d) trial proceedings may be needed, which may be protracted and held in locations other than Washington, D.C. Glosser, Congressional Reference Cases in the United States Court of Claims: A Historical and Current Perspective, 25 Am.L.Rev. at 605. The function of the congressional reference procedure that is most beneficial to Congress is the clarification and determination of the many tenuous and frequently complex facts that a claimant alleges to apply to equities in the claim. The facts, once clarified, provide a basis on which Congress can predicate action on the bill referred, or on a substitute bill in a later Congress. The report to Congress on the bill referred is advisory, and any conclusions as to whether the claim is legal or equitable, and any conclusions as to compensation due, are recommendations only. In each case, the facts are sui generis. Merchants Nat’l Bank of Mobile v. United States, 7 Cl.Ct. 1 (1984). Inasmuch as the conclusions are recommendations, as distinguished from judicial judgments, the court-made rules of stare decisis and res judicata do not apply. Congressional reference eases have no binding value as precedent. In the application of the congressional reference procedure, certain elements are constant. An “equitable claim” is not reported unless the facts create an obligation that the United States should recognize. The obligation may arise from some unjustified government acts that caused damage to the claimants, Merchants Nat’l Bank, 7 Cl.Ct. at 9 n. 6; Wounded Knee Innocent Victims v." }, { "docid": "11970304", "title": "", "text": "sections 1492 and 2509 of title 28, United States Code, and report thereon to the Senate, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand as a claim, legal or equitable, against the United States of a gratuity and the amount, if any, legally or equitably due to the claimants from the United States. S.Res. 114, 104th Cong., 1st Sess. (1995). The congressional reference thus instructs the court to ascertain whether INSLAW has presented sufficient evidence to support a claim for legal or equitable relief or relief in the form of a gratuity. In the context of a congressional reference, “legal claim” implies no special meaning. A legal claim arises upon the invasion of a party’s legal rights. Such a legal right can be “one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.” Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 137, 59 S.Ct. 366, 369, 83 L.Ed. 543 (1939). A legal claim must be one conferred by the “substantive law, i.e., the Constitution, a statute, a regulation, or some principle of common law, and is based on the invasion of a legal right.” Land v. United States, 29 Fed.Cl. 744, 751 (1993). An “equitable claim,” in the context of a congressional reference, does not mean a claim in equity in the technical sense, but rather a broad moral right to recover based upon general equitable considerations. See, e.g., Adams v. United States, 175 Ct.Cl. 288, 358 F.2d 986 (1966). “ ‘An equitable claim on a Congressional reference must rest on some unjustified governmental act that caused damage to the claimants. Absent a finding of negligence [or wrongdoing] on the part of government employees, any award herein would be a gratuity.’ ” California Canners & Growers Ass’n v. United States, 9 Cl.Ct. 774, 785 (1986) (review panel) (quoting Wong v. United States, Cong.Ref. No. 3-74, slip op. at 12-13 (Ct.Cl. Nov. 23, 1977)). A gratuity" }, { "docid": "6972594", "title": "", "text": "whether the bar of any statute of limitation should be removed, or facts claimed to excuse the claimant for not having resorted to any established legal remedy. He shall append to his findings of fact conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due from the United States to the claimant.” 28 U.S.C. § 2509(c). I. Parties to Congressional Reference Proceedings The Court’s obligation in this action is founded on 28 U.S.C. §§ 1492 and 2509. “Language added or omitted in the reference resolution, or addition of supplementary language by one House of Congress at the time the reference resolution is under consideration, does not have the force and effect of an amendment to the basic law. It can neither add to nor subtract from the requirements of the reference statute.” Sneeden v. United States, 33 Fed.Cl. 303, 308-09 (1995); Paul v. United States, 20 Cl.Ct. 236, 266, aff'd, 21 Cl.Ct. 758 (1990). As such, in this congressional reference, the Court must ascertain whether plaintiff has presented sufficient evidence to support a claim for legal or equitable relief for Richard Kanehl, or whether relief would be a gratuity. Although plaintiff in this case has added the names “Dri-Mix Group (Rev. David Barney, A.D. Barrett, Dr. Richard Barrett, William M. Lyon, and Richard V. Williams),” to his complaint and brief in this congressional reference proceeding, these additions do not change the scope of this Court’s review or recommendations by this Court to Congress under 28 U.S.C. § 2509. Plaintiff cites Schutt Construction Co., Inc. v. United States, 173 Ct.Cl. 836, 353 F.2d 1018 (1965), in support of its claim that the names of individuals other than Richard Kanehl should not be removed from this proceeding. Schutt does not provide support for plaintiff. Rather, in Schutt, the congressional relief bill referred to our predecessor Court of Claims specifically considered payment to a prime contractor “on behalf of its subcontractor.” Schutt, 173 Ct.Cl. at 859, 353 F.2d 1018. Neither S. Res. 108 nor S. 974 contemplate" }, { "docid": "6972604", "title": "", "text": "based upon a substantive right, the invasion of which is redressable at law. White Sands Ranchers, 14 Cl.Ct. at 565; California Canners & Growers Ass’n v. United States, 1 Cl.Ct. 69, 91 (1984). Such an invasion may be “ ‘one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which -confers a privilege.’ ” Spalding & Son, Inc., 28 Fed.Cl. at 247 (quoting Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 137, 59 S.Ct. 366, 369, 83 L.Ed. 543 (1939)). Even if the plaintiff in a congressional reference might otherwise have a valid claim to legal recovery on the merits that legal claim may nonetheless be barred by some technical or procedural impediment including, but not limited to, the statute of limitations, laches, or release of claims. California Canners & Growers Ass’n, 1 Cl.Ct. at 97. If it is determined that the plaintiff does not have a legal claim against the United States, the Court must then address whether the plaintiff has an equitable claim. California Canners & Growers, 1 Cl.Ct. at 97. The term “equitable claim” does take on a special meaning as used in congressional reference actions. Bear Claw Tribe, Inc., 36 Fed.Cl. at 186; White Sands Ranchers, 14 Cl.Ct. at 565. The precise meaning of the term “equitable claim” in congressional reference proceedings is, however, rather opaque in the light of the prior decisions of this Court and our predecessor United States Court of Claims. See Jeffrey M. Glosser, Congressional Reference Cases in the United States Court of Claims: A Historical and Current Perspective, 25 Am. L.Rev. 595, 617-27 (1976). Some of the Court’s decisions seem to define equitable claim in the broad sense of the moral obligation of the govern ment. Phillips v. United States, 207 Ct.Cl. 924, 929 (1975); Burkhardt v. United States, 113 Ct.Cl. 658, 84 F.Supp. 553, 559 (1949). The Court’s more recent decisions, however, appear to restrict the availability of equitable relief to those situations in which the government is negligent or otherwise at fault. Sneeden v. United States, 33 Fed.Cl. 303," }, { "docid": "21534587", "title": "", "text": "658, 667, 84 F.Supp. 553, 559 (1949). That view no longer finds favor. The rule now uniformly applied is stated in California Canners & Growers Ass’n v. United States, 9 Cl.Ct. 774, 785 (1986) “ ‘An equitable claim on a Congressional reference must rest on some unjustified governmental act that caused damage to the claimants. Absent a finding of negligence [or wrongdoing] on the part of governmental employees, any award ... would be a gratuity’ ” (quoting Wong v. United States, Cong.Ref. No. 3-74, slip op. at 12-13 (Ct.Cl. Nov. 23, 1977)). Expressed in more concrete terms, what we are talking about are situations in which a claimant, though injured by Government action, either has no remedy under existing law or the remedy has become barred because of a statute of limitations. This, then, is the equitable claim standard that we adhere to. Assessed against this standard, Spald-ing’s situation does not offer a basis for equitable relief. This holds true even if we accept as correct the hearing officer’s conclusions that BLM based Modification No. 5 on an erroneous interpretation of Section 7 (the contract’s risk of loss provision) and then compounded that error by obtaining Spalding’s endorsement of the modification through an implicit threat of an even larger volume cutback. To explain: as the prior discussion points out, a contractual right to harvest timber in the burned-over sections of sub-sale A did not survive the Grave Creek Fire; hence, there was no legal right in Spalding which the Government’s “wrongful” actions could be said to have transgressed. Essentially this same reasoning also determines whether plaintiff may now find relief under the alternative heading of an equitable claim. The answer is again no because even as the Government’s “faults” invaded no legal right of the plaintiff, so neither did they occasion any injury in their own right. The harm that Spalding suffered — the extinguishment of a contract expectancy — traces to an act of private wrongdoing and not to Government wrong doing. In short, there was no fault on the Government’s part of the sort for which relief in" }, { "docid": "6622751", "title": "", "text": "apply to equities in the claim. The facts, once clarified, provide a basis on which Congress can predicate action on the bill referred, or on a substitute bill in a later Congress. The report to Congress on the bill referred is advisory, and any conclusions as to whether the claim is legal or equitable, and any conclusions as to compensation due, are recommendations only. In each case, the facts are sui generis. Merchants Nat’l Bank of Mobile v. United States, 7 Cl.Ct. 1 (1984). Inasmuch as the conclusions are recommendations, as distinguished from judicial judgments, the court-made rules of stare decisis and res judicata do not apply. Congressional reference eases have no binding value as precedent. In the application of the congressional reference procedure, certain elements are constant. An “equitable claim” is not reported unless the facts create an obligation that the United States should recognize. The obligation may arise from some unjustified government acts that caused damage to the claimants, Merchants Nat’l Bank, 7 Cl.Ct. at 9 n. 6; Wounded Knee Innocent Victims v. United States, Cong. Ref. No. 4-76, December 15, 1981, synopsis at 229 Ct.Cl. 465 (1981); Wong v. United States, Cong. Ref. No. 3-74, p. 12-13, Nov. 23, 1977, rev’d on other grounds by Review Panel, May 16, 1979, synopsis at 220 Ct.Cl. 750 (1979), or it may arise when the government acquires benefits through overreaching by its agents or by misleading representations by government agents that are beyond the scope of delegated authority. Gay Street Corp. v. United States, 127 F.Supp. 585 (Ct.Cl.1955). In the absence of wrongdoing on the part of government officials and employees, an essential ingredient for a recommendation of an equitable award is lacking. California Canners and Growers v. United States, 9 Cl.Ct. 774, 785 (1986). The supplemental request in H.Res. 568 did not change the statutory requirement to report facts sufficient to inform Congress of the amount legally or equitably due from the United States to the claimant. The supplemental language was a request for additional information. It was not language that changed the statutory standards applicable to an equitable" }, { "docid": "11970305", "title": "", "text": "118, 137, 59 S.Ct. 366, 369, 83 L.Ed. 543 (1939). A legal claim must be one conferred by the “substantive law, i.e., the Constitution, a statute, a regulation, or some principle of common law, and is based on the invasion of a legal right.” Land v. United States, 29 Fed.Cl. 744, 751 (1993). An “equitable claim,” in the context of a congressional reference, does not mean a claim in equity in the technical sense, but rather a broad moral right to recover based upon general equitable considerations. See, e.g., Adams v. United States, 175 Ct.Cl. 288, 358 F.2d 986 (1966). “ ‘An equitable claim on a Congressional reference must rest on some unjustified governmental act that caused damage to the claimants. Absent a finding of negligence [or wrongdoing] on the part of government employees, any award herein would be a gratuity.’ ” California Canners & Growers Ass’n v. United States, 9 Cl.Ct. 774, 785 (1986) (review panel) (quoting Wong v. United States, Cong.Ref. No. 3-74, slip op. at 12-13 (Ct.Cl. Nov. 23, 1977)). A gratuity is an award given to a party absent a sufficient finding of grounds for either legal or equitable relief. Gordon v. United States, 148 Ct.Cl. 31, 40, 180 F.Supp. 591, 596 (1960); see also Spalding & Son, Inc. v. United States, 28 Fed.Cl. 242,250-51 (1993). 2. Standard of review Defendant has moved for a ruling in limine or, alternatively, partial summary judgment. The basic purpose of a motion in limine is “to prevent a party before trial from encumbering the record with irrelevant, immaterial or cumulative matters. Such a motion enables a court to rule in advance on the admissibility of documentary or testimonial evidence and thus expedite and render efficient a subsequent trial.” Baskett v. United States, 2 Cl.Ct. 356, 367-68 (1983), aff'd, 790 F.2d 93 (Fed.Cir.) (Table), cert. denied, 478 U.S. 1006, 106 S.Ct. 3300, 92 L.Ed.2d 714 (1986). In this manner the court filters out irrelevant evidence and performs its function of “simplifying issues for trial.” Baskett, 2 Cl.Ct. at 359. Nevertheless, granting a motion in limine should not “preclude plaintiffs from" } ]

[ { "docid": "22942090", "title": "", "text": "was investigating Kidd’s new criminal activity in an effort to obtain information regarding an offense for which no charge had yet been filed, and thus for which no Sixth Amendment right had been invoked. Kidd nonetheless contends that the August 26 offense was so “closely related” to the pending charges that the right to counsel attached to it. He contends that the government cannot fairly claim to be investigating new criminal conduct where the charged and uncharged offenses are “so inextricably intertwined” or “extremely closely related” that the right to counsel for one offense cannot be separated from the other offense. United States v. Cooper, 949 F.2d 737, 743 (5th Cir.1991); see also United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992). Kidd argues that the August 26 drug transaction was “closely related” to the pending charges because it, like the charged offenses, was a drug possession and distribution offense. Kidd’s argument, however, misconstrues the nature of any “related offense” exception to the offense-specific character of the Sixth Amendment. In order to fall within this exception, the offense being investigated must derive from the same factual predicate as the charged offense. Here, although the August 26 transaction involved the same type of crime as the charged offenses, it involved a different purchaser-informant, occurred at a different time, and took place in a different location. In short, the August 26 offense was factually distinct from, and independent of, the prior distribution offenses for which the Sixth Amendment right had been invoked. See Hines, 963 F.2d at 257 (holding that a charged firearm possession offense is not closely related to an uncharged firearm possession offense because the “place, time, and person involved were all different”). The mere fact that both the pending charges and the new offense involved drug distribution does not mean the right to counsel attached to both. To hold otherwise would essentially permit charged suspects to commit similar crimes with impunity. In this case, such a holding would hamper authorities in investigating whether Kidd had violated the terms of his personal recognizance bond. The Sixth Amendment does not" } ]

[ { "docid": "5736497", "title": "", "text": "Miner, was “ineffective” in waiving his previously invoked Sixth Amendment right. McNeil, 501 U.S. at 175, 111 S.Ct. at 2207. The government reminds us that the Sixth Amendment right to counsel is “offense specific,” id., and thus maintains the “fact that no federal charges ... were pending” against Melgar at the time of his state arraignment and invocation of Sixth Amendment rights “should dispose” of this claim. Brief of Ap-pellee at 24. Melgar, however, contends that his federal offenses were so “inextricably intertwined” or “closely related” to the state charges for which he had invoked his Sixth Amendment right to counsel, that to invoke the right for one was essentially to invoke the right for the other. See, e.g., United States v. Arnold, 106 F.3d 37, 40-41 (3d Cir.1997) (“the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense”). As we have recently recognized, application of the offense-specific rule means that “government investigations of new criminal activity for which an accused has not yet been indicted do not violate the Sixth Amendment right to counsel.” United States v. Kidd, 12 F.3d 30, 31 (4th Cir.1993) (emphasis added). The crux of Melgar’s argument is that the government cannot ostensibly launch an investigation of, or interrogation about, “new” crimes if those “new” crimes are so inextricably intertwined with the “old” (i.e., already charged) crimes that interrogation about the “new” amounts to interrogation about the “old.” Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), offers support for this contention. There, the Supreme Court held that the government violated a defendant’s Sixth Amendment right to counsel when it interrogated him post-indictment without counsel, even though this interrogation was part of a legitimate investigation of “new” crimes. Id. at 176-80, 106 S.Ct. at 487-89. Once the Sixth Amendment right attaches, the government must honor it, which “means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel.” Id. at 170-71, 106 S.Ct. at 484. Rather, the Sixth Amendment imposes on the government “an" }, { "docid": "16129560", "title": "", "text": "court denied this particular allegation of ineffective assistance because Peoples had not been formally charged with the Franklin murders at the time he confessed to the sheriffs. Quoting from McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991), the court began its analysis by noting that the Sixth Amendment right to counsel is offense specific and does not generally attach until prosecution for a specific offense is commenced “by way of formal charge, preliminary hearing, indictment, information or arraignment.” Based on this reasoning, the court determined that Peoples’s right to counsel with respect to the murder charges did not attach until Peoples had been indicted for capital murder on August 3, fifteen days after he met with Sheriffs Brown and Studdard. Peoples, however, has identified a narrow exception to the “offense specific” rule which some circuits have applied in cases where police questioning on “the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.” United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992). Relying on this exception, Peoples contends that because the facts and circumstances underlying the theft-of-the-Corvette charge were so closely related to the facts and circumstances surrounding the murder charge, his Sixth Amendment right to the effective assistance of counsel in the murder case attached no later than July 12, the day immediately following his incarceration in the St. Clair County jail for vehicular theft. The district court concluded that our holding in Waldrop v. Jones, 77 F.3d 1308 (11th Cir.1996), foreclosed Peoples’s argument. The court reached this conclusion without the benefit of the Supreme Court’s recent opinion in Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). In Cobb, the Court re-affirmed that “The Sixth Amendment right [to counsel] ... is offense specific.” Id. at 167, 121 S.Ct. at 1340. The Court framed the issue by observing that, “The State sought review in this Court, and we granted certiorari to consider first" }, { "docid": "1428191", "title": "", "text": "United States v. Cooper, 949 F.2d 737, 743-44 (5th Cir.1991) (holding that uncharged federal offense of unlawful possession of unregistered firearm was not inextricably intertwined with pending state charge of armed robbery involving the same weapon), cert. denied, — U.S. —, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992). The pending December charge is logically distinct from the uncharged January offense. Although it was the same offense, the place, time, and persons involved were all different. Because the charges are separate and distinct, there was no Sixth Amendment violation, which would necessitate suppression of the contested statement. Absent a Sixth Amendment violation by way of investigation of activities inextricably intertwined with pending charges, Hines is not entitled to suppression of the evidence unless the government breached its “affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.” Moulton, 474 U.S. at 171, 106 S.Ct. at 484. Hines contends that the government’s subsequent joinder of the December charges with the January charges violated its affirmative obligation not to act in a manner which diluted Hines’s Sixth Amendment rights. Here, there is no evidence that the state or federal government “knowingly circumvented Hines’s] right to the assistance of counsel.” Id. at 180, 106 S.Ct. at 489. The agent was careful to question Hines only about the January activities (which were uncharged at the time of questioning), and there is no evidence that the state’s dismissal of the January charges and the federal government’s subsequent joinder of the same charges were the result of collusion between the authorities. Because neither government breached its “affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking” the Sixth Amendment, id. at 176, 106 S.Ct. at 487, joinder of the charges did not violate Hines’s right to counsel. Compare United States v. Mitcheltree, 940 F.2d 1329, 1340-43 (10th Cir.1991) (joinder of “theoretically distinct” charges violated Sixth Amendment where government surreptitiously recorded defendant’s conversation with informant, who inquired into pending charges) and United States v. Terzado-Madruga, 897 F.2d 1099, 1110-11 (11th" }, { "docid": "10440642", "title": "", "text": "the defendant to facilitate a federal investigation of the same conduct); Mitcheltree, 940 F.2d at 1329 (reversing witness tampering conviction where the government exploited a contact between the defendant, who was indicted for a drug offense, and a government witness, to acquire evidence for both the drug prosecution and a tampering charge related to the contact with the witness). In the second line of decisions examined by the Whittlesey court, the focus is entirely on whether the facts underlying the charged and uncharged offenses are either “closely related” or “inextricably intertwined,”; two terms which we take to mean the same thing. In these opinions, the unity-ing theme is that the right to counsel will carry over from the pending charge to the new charge only where the new charge arises from the same acts and factual predicates on which the pending charges were based. Whittlesey, 665 A.2d at 235 (citations omitted). In determining whether the same acts and factual predicates underlie both the pending and the new charges, courts have looked for similarities of time, place, person and conduct. See, e.g., Kidd, 12 F.3d at 33; Hines, 963 F.2d at 257-58; Vasquez, 974 F.2d at 1104-05; Carpenter, 963 F.2d at 740-41. It is undisputed that before Arnold’s arrest he retained an attorney to represent him in connection with the government’s ongoing investigation into the bank larcenies. It is also undisputed that Arnold’s attorney advised the government that he was representing Arnold and that Arnold should not be questioned in his absence. Because Arnold’s right to counsel for the larceny, laundering and witness intimidation charges attached on the morning of March 28, 1995, when the sealed indictment on these charges was returned, the issue is whether Arnold’s right to counsel carried over to the March 28, 1995 “sting” operation and the subsequent indictment for the attempted murder. We have not decided whether to recognize the “closely related” exception to the offense specific requirement of the Sixth Amendment. This case requires that we now do so. Arnold^ argues that both offenses involved the same witness and arise out of precisely the same" }, { "docid": "10440643", "title": "", "text": "place, person and conduct. See, e.g., Kidd, 12 F.3d at 33; Hines, 963 F.2d at 257-58; Vasquez, 974 F.2d at 1104-05; Carpenter, 963 F.2d at 740-41. It is undisputed that before Arnold’s arrest he retained an attorney to represent him in connection with the government’s ongoing investigation into the bank larcenies. It is also undisputed that Arnold’s attorney advised the government that he was representing Arnold and that Arnold should not be questioned in his absence. Because Arnold’s right to counsel for the larceny, laundering and witness intimidation charges attached on the morning of March 28, 1995, when the sealed indictment on these charges was returned, the issue is whether Arnold’s right to counsel carried over to the March 28, 1995 “sting” operation and the subsequent indictment for the attempted murder. We have not decided whether to recognize the “closely related” exception to the offense specific requirement of the Sixth Amendment. This case requires that we now do so. Arnold^ argues that both offenses involved the same witness and arise out of precisely the same facts and circumstances— namely, Arnold’s thefts and the threat that Kloss, as a potential witness, posed to him. Most importantly, from Arnold’s perspective, is the idea that his attempt to hire a hit man strongly indicates that he threatened Kloss earlier and that the threats were made to silence a potential witness, thereby establishing a common base of evidence from which the charges of attempted murder and witness intimidation arose. Finally, Arnold correctly notes that the government’s failure to have sufficient evidence to indict him on the attempted murder charge before the March 28 “sting” cannot justify violating his Sixth Amendment rights to gather the evidence necessary to support an indictment for attempted murder. We adopt the “closely related” exception and hold that it applies here. Indeed, it is difficult to understand how the witness intimidation and attempted murder of a witness offenses could be any more closely related. As the record shows, both charges: (1) involve the same witness; (2) arise from the same facts and circumstances; (3) are closely related in time; and," }, { "docid": "10440655", "title": "", "text": "not applying the exception), cert. denied, — U.S. —, 114 S.Ct. 1629, 128 L.Ed.2d 352 (1994); Hendricks v. Vasquez, 974 F.2d 1099, 1104 (9th Cir.1992) (same); United States v. Carpenter, 963 F.2d 736, 740-41 (5th Cir.) (same), cert. denied, 506 U.S. 927, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992); United States v. Hines, 963 F.2d 255, 257-58 (9th Cir.1992) (same); United States v. Cooper, 949 F.2d 737, 743-44 (5th Cir.1991) (same), cert. denied, 504 U.S. 975, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992); United States v. Mitcheltree, 940 F.2d 1329, 1342-43 (10th Cir.1991) (applying the exception); People v. Clankie, 124 Ill.2d 456, 125 Ill.Dec. 290, 294, 530 N.E.2d 448, 452 (1988) (same); State v. Tucker, 137 N.J. 259, 645 A.2d 111, 120-25 (1994) (recognizing but not applying the exception), cert. denied, — U.S. —, 115 S.Ct. 751, 130 L.Ed.2d 651 (1995); In re Pack, 420 Pa.Super. 347, 616 A.2d 1006, 1008-11 (1992) (applying the exception). . This decision calls Arnold’s conviction for witness intimidation into question. Both parties admit that a limiting instruction for the use of the March 28 tape recording was neither requested nor given. We conclude, nonetheless, that the improper admission of the March 28 tape recording, even without a limiting instruction, was harmless beyond a reasonable doubt. The evidence against Arnold with respect to the intimidation charge was overwhelming. Therefore, we will affirm Arnold’s witness intimidation conviction. . Judge Roth does not believe that the \"clear and convincing” standard is applicable here. In her opinion, the language of Application Note 1 of U.S.S.G. § 3C1.1 provides a sufficiently stringent basis to determine whether the enhancement is appropriate using a \"preponderance of the evidence” standard. The adoption of a \"clearly convincing” standard is not helpful to district court judges who must keep in mind a growing list of different standards of proof to apply in sentencing proceedings. Because the district judge did not, however, indicate that his determination of \"willfully false” was made in a light most favorable to the defendant, Judge Roth agrees it is necessary to remand on the issue of the enhancement for obstruction" }, { "docid": "10440654", "title": "", "text": "findings that he had the ability to pay restitution. The government concedes error, and we agree. See United States v. Copple, 74 F.3d 479, 482 (3d Cir.1996). Therefore, we will vacate the restitution order and remand the matter for the district court to find whether Arnold is able to pay restitution. Finally, Arnold contends that the district court erred by delegating the timing and the amount of his restitution payments to his probation officer. The government again concedes error, and again we agree. See United States v. Graham, 72 F.3d 352, 356 (3d Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 1286, 134 L.Ed.2d 230 (1996). Hence, on remand the district court itself must determine both the timing and the amount of the restitution payments. VI. In summary, we will reverse Arnold’s conviction for attempted murder, affirm his conviction for witness intimidation, vacate his sentence, and remand the matter to the district court for proceedings in accordance with this opinion. . See, e.g., United States v. Kidd, 12 F.3d 30, 32 (4th Cir.1993) (recognizing but not applying the exception), cert. denied, — U.S. —, 114 S.Ct. 1629, 128 L.Ed.2d 352 (1994); Hendricks v. Vasquez, 974 F.2d 1099, 1104 (9th Cir.1992) (same); United States v. Carpenter, 963 F.2d 736, 740-41 (5th Cir.) (same), cert. denied, 506 U.S. 927, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992); United States v. Hines, 963 F.2d 255, 257-58 (9th Cir.1992) (same); United States v. Cooper, 949 F.2d 737, 743-44 (5th Cir.1991) (same), cert. denied, 504 U.S. 975, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992); United States v. Mitcheltree, 940 F.2d 1329, 1342-43 (10th Cir.1991) (applying the exception); People v. Clankie, 124 Ill.2d 456, 125 Ill.Dec. 290, 294, 530 N.E.2d 448, 452 (1988) (same); State v. Tucker, 137 N.J. 259, 645 A.2d 111, 120-25 (1994) (recognizing but not applying the exception), cert. denied, — U.S. —, 115 S.Ct. 751, 130 L.Ed.2d 651 (1995); In re Pack, 420 Pa.Super. 347, 616 A.2d 1006, 1008-11 (1992) (applying the exception). . This decision calls Arnold’s conviction for witness intimidation into question. Both parties admit that a limiting instruction for the" }, { "docid": "1428190", "title": "", "text": "one crime.] ... [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activi-ties_ Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses. McNeil, 111 S.Ct. at 2207-08 (quoting Maine v. Moulton, 474 U.S. 159, 179-80 & n. 16, 106 S.Ct. 477, 489 & n. 16, 88 L.Ed.2d 481 (1985)). The Sixth Amendment thus does not bar Hines’s admissions during the second, interview, which pertained to activities for which he had not yet been indicted. An exception to the offense-specific requirement of the Sixth Amendment occurs when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense. See United States v. Cooper, 949 F.2d 737, 743-44 (5th Cir.1991) (holding that uncharged federal offense of unlawful possession of unregistered firearm was not inextricably intertwined with pending state charge of armed robbery involving the same weapon), cert. denied, — U.S. —, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992). The pending December charge is logically distinct from the uncharged January offense. Although it was the same offense, the place, time, and persons involved were all different. Because the charges are separate and distinct, there was no Sixth Amendment violation, which would necessitate suppression of the contested statement. Absent a Sixth Amendment violation by way of investigation of activities inextricably intertwined with pending charges, Hines is not entitled to suppression of the evidence unless the government breached its “affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.” Moulton, 474 U.S. at 171, 106 S.Ct. at 484. Hines contends that the government’s subsequent joinder of the December charges with the January charges violated its affirmative obligation" }, { "docid": "23512937", "title": "", "text": "exception to the offense-specific requirement. This exception exists “when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.” Covarrubias, 179 F.3d at 1223 (quoting United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992)). This court recently set forth the test for determining whether or not this exception applies: Deciding whether the exception is applicable requires an examination and comparison of all of the facts and circumstances relating to the conduct involved, including the identity of the persons involved (including the victim, if any), and the timing, motive, and location of the crimes. No single factor is ordinarily dispositive.... The greater the commonality of the factors and the more directly linked the conduct involved, the more likely it is that courts will find the exception to be applicable. Covarrubias, 179 F.3d at 1225. Here, the drug offenses and the gun offenses arose from exactly the same facts and circumstances. The offenses occurred at the same time and location, involved the same parties, and were tried together. Ortega’s motive for carrying a gun is directly linked with the drug charges: He told an officer that he took the gun for protection during the drug transaction. Moreover, the government failed to cite to any cases in which this court or the Supreme Court ruled that crimes arising from the same facts and circumstances constituted separate and unrelated offenses to which the offense-specific requirement does not apply. In sum, the portion of’the INS interview relating to the gun offenses violated the Sixth Amendment because the drug offenses — to which Ortega had already been charged— and the gun offenses were inextricably intertwined. The interview violated Ortega’s Sixth Amendment right to counsel even though the interview was conducted by an INS officer, not the prosecutor. The INS officer, an agent of the federal government, interviewed Ortega only after the DEA informed him that Ortega had been arrest ed and was being, held in jail. Moreover, while interviewing Ortega, the" }, { "docid": "8094579", "title": "", "text": "judge found that the Miranda warnings given by the San Francisco police on March 27 were proper, that Hendricks had initiated the conversations with the detectives on the trip to San Francisco, and that Hendricks’ statement was free and voluntary. At the trial from which this appeal arises, Hendricks did not move to suppress his second statement. However, at the subsequent trial in Los Angeles for the murders covered by the second statement, Hendricks did move to suppress it. At that hearing, Hendricks conceded that the alcohol had not affected his ability to understand and give answers to the detectives’ questions. The Los Angeles trial judge found that “[Hendricks] was properly Mir-andized and it was a free and voluntary statement. It appears from hearing the tapes [of the confession] that there was no effect of the alcohol and he was really anxious to make all the statements to them.” Hendricks’ sixth amendment argument concerning the two statements is unavailing. The sixth amendment right to counsel attaches after a defendant has been arraigned. Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 1407, 89 L.Ed.2d 631 (1986). However, the sixth amendment is offense-specific. McNeil v. Wisconsin, — U.S. -, -, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). In other words, if a defendant is arraigned on one charge, then the sixth amendment right to counsel attaches to that charge but not to a different charge for which the defendant has not yet been arraigned. We have recognized a limited exception to that rule, however, when the two charges are “so inextricably intertwined ... that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.” United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992). In addition, where state and federal authorities act in collusion to circumvent a defendant’s right to counsel, the sixth amendment right may extend from a state charge to a federal one when the two charges arise “from the same incident.” United States v. Martinez, 972 F.2d 1100, 1101, 1102, 1105 (9th Cir.1992) (state and" }, { "docid": "18629347", "title": "", "text": "valid invocation of the right as to one charge will typically have no effect on different charges for which the defendant has not yet been arraigned. Id.; Hendricks v. Vasquez, 974 F.2d 1099, 1104 (9th Cir.1992). At least one circuit has suggested a narrow exception to this general rule in cases where the two charges are “inextricably intertwined,” United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992), or arise from the same incident. See Hendricks, 974 F.2d at 1104. This ease falls squarely within the rule laid down in McNeil. Helium does not dispute that the police interrogation occurred during the investigation of Helium’s escape attempt. The attempt was a new crime with distinct elements from the various charges stemming from the events in the bar. Thus, even if we were to adopt the narrow exception applied by the Ninth Circuit, we would reach the same result. See Hendricks, 974 F.2d at 1104-05 (refusing to apply exception where defendant was first charged with interstate flight to avoid murder prosecution, and later charged for murder; “the two crimes have totally independent elements”). We affirm the denial of the writ. . The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)." }, { "docid": "5736503", "title": "", "text": "his Sixth Amendment right to counsel, although the government is generally free to interrogate him without counsel as to crimes to which that right has not attached, the government may not knowingly question him as to crimes closely related to those to which his Sixth Amendment right has attached. Lower courts have followed Moulton and concluded that the “Sixth Amendment right to counsel extends to interrogations on new charges where the pending charge is ... inextricably intertwined with the charge under investigation.” United States v. Doherty, 126 F.3d 769, 776 (6th Cir.1997) (internal citations and quotations omitted) (collecting cases); see also United States v. Mitcheltree, 940 F.2d 1329, 1342 (10th Cir.1991) (“when a deliberate Sixth Amendment violation occurs concerning the pending charges, the government may not use defendant’s uncounseled incriminating statements at a trial of those or very closely related subsequent charges”). As the Third Circuit recently explained, “[t]o hold otherwise ... would allow the government to circumvent the Sixth Amendment right to counsel merely by charging a defendant with additional related crimes after questioning him without counsel present.” Arnold, 106 F.3d at 41 (internal quotation and brackets omitted). Accord Doherty, 126 F.3d at 776. Moreover, if state and federal authorities cooperate in their respective investigations, as they indisputably did here, the fact that the two sets of charges were “brought by different sovereigns is irrelevant to this analysis.” Doherty, 126 F.3d at 776. See also United States v. Laury, 49 F.3d 145, 150 n. 11 (5th Cir.1995) (“If ... the charges to which the Sixth Amendment right has been invoked and the new charges are ‘inextricably intertwined,’ the Sixth Amendment right may extend to the new charges.... In this case the [new] federal charges and [pending] state charges were identical, and therefore invocation of the Sixth Amendment right on the state charges was sufficient to invoke the right on the federal charges.”); United States v. Martinez, 972 F.2d 1100, 1105 (9th Cir.1992) (after defendant was indicted and invoked his Sixth Amendment right to counsel on state weapons charge, that charge was dismissed and he was interrogated and then indicted" }, { "docid": "5736504", "title": "", "text": "him without counsel present.” Arnold, 106 F.3d at 41 (internal quotation and brackets omitted). Accord Doherty, 126 F.3d at 776. Moreover, if state and federal authorities cooperate in their respective investigations, as they indisputably did here, the fact that the two sets of charges were “brought by different sovereigns is irrelevant to this analysis.” Doherty, 126 F.3d at 776. See also United States v. Laury, 49 F.3d 145, 150 n. 11 (5th Cir.1995) (“If ... the charges to which the Sixth Amendment right has been invoked and the new charges are ‘inextricably intertwined,’ the Sixth Amendment right may extend to the new charges.... In this case the [new] federal charges and [pending] state charges were identical, and therefore invocation of the Sixth Amendment right on the state charges was sufficient to invoke the right on the federal charges.”); United States v. Martinez, 972 F.2d 1100, 1105 (9th Cir.1992) (after defendant was indicted and invoked his Sixth Amendment right to counsel on state weapons charge, that charge was dismissed and he was interrogated and then indicted on strikingly similar federal weapons charge; the court held that if “federal and state authorities worked together in shuffling his charge from the state to the federal system” they violated their “ ‘affirmative obligation not to act in a manner that circumvents’ ” his Sixth Amendment “ ‘right to counsel’ ”) (quoting Moulton, 474 U.S. at 171, 106 S.Ct. at 484-85); United States v. Foreman, 993 F.Supp. 186 (S.D.N.Y.1998) (adopting closely related exception when pending state charge is inextricably intertwined with new federal charge); United States v. Rodriguez, 931 F.Supp. 907, 926-27 (D.Mass.1996) (adopting “closely related” exception where state and federal charges “arise from identical conduct” and federal investigator was “fully aware of the state charges” at time he interrogated defendant). In United States v. Kidd, 12 F.3d 30, 32 (4th Cir.1993), we, too, addressed the parameters of the “closely related” or “inextricably intertwined” exception to the “offense-specific character of the Sixth Amendment.” Chief Judge Wilkinson explained that in order to fall within the “closely related” exception, “the offense being investigated must derive from the" }, { "docid": "5736505", "title": "", "text": "on strikingly similar federal weapons charge; the court held that if “federal and state authorities worked together in shuffling his charge from the state to the federal system” they violated their “ ‘affirmative obligation not to act in a manner that circumvents’ ” his Sixth Amendment “ ‘right to counsel’ ”) (quoting Moulton, 474 U.S. at 171, 106 S.Ct. at 484-85); United States v. Foreman, 993 F.Supp. 186 (S.D.N.Y.1998) (adopting closely related exception when pending state charge is inextricably intertwined with new federal charge); United States v. Rodriguez, 931 F.Supp. 907, 926-27 (D.Mass.1996) (adopting “closely related” exception where state and federal charges “arise from identical conduct” and federal investigator was “fully aware of the state charges” at time he interrogated defendant). In United States v. Kidd, 12 F.3d 30, 32 (4th Cir.1993), we, too, addressed the parameters of the “closely related” or “inextricably intertwined” exception to the “offense-specific character of the Sixth Amendment.” Chief Judge Wilkinson explained that in order to fall within the “closely related” exception, “the offense being investigated must derive from the same factual predicate as the charged offense.” Id. Because Kidd’s later offenses “involved a different purchaser-informant, occurred at a different time, and took place in a different location” than his previously charged crimes, he could not meet that requirement — “place, time, and person involved were all different.” Id. (internal quotation omitted). Melgar asserts that, unlike Kidd, his later federal offenses do involve the same time, place, and conduct as the pending state offenses. Accordingly, he contends that the “closely related” exception applies in his case and required suppression of his statements to Agent Miner. Melgar is correct that his state and federal charges involve the same time, place, and conduct. Specifically, both the state and federal firearm possession charges are based on the seizure of a gun from Melgar when state police arrested him on November 26. Similarly, the state and federal drug charges arose from seizure of marijuana during that arrest, and both the state and federal false identification card charges stem from Mel-gar’s possession, at the time of that arrest, of a" }, { "docid": "10440641", "title": "", "text": "at 257; see also Cooper, 949 F.2d at 743. “[T]o hold otherwise[ ] would allow the [government] to circumvent the Sixth Amendment right to counsel merely by charging a defendant with additional related crimes” after questioning him without counsel present. In re Pack, 616 A.2d at 1011. In a scholarly opinion we find instructive, the Maryland Court of Appeals extensively analyzed the “closely related” exception to the offense-specific requirement of the Sixth Amendment in Whittlesey v. State, 340 Md. 30, 665 A.2d 223 (1995), cert. denied, — U.S. —, 116 S.Ct. 1021, 134 L.Ed.2d 100 (1996). Collecting cases, the Whittlesey Court identified two lines of decisions that had emerged from courts considering the exception. In the first line of decisions, courts invoke the exception where (1) the offenses are “closely related,” construing that phrase relatively broadly, and (2) there is evidence of deliberate police misconduct in the process of eliciting the incriminating statements. See, e.g., United States v. Martinez, 972 F.2d 1100 (9th Cir.1992) (remanding to determine whether state prosecutors had deliberately dropped charges against the defendant to facilitate a federal investigation of the same conduct); Mitcheltree, 940 F.2d at 1329 (reversing witness tampering conviction where the government exploited a contact between the defendant, who was indicted for a drug offense, and a government witness, to acquire evidence for both the drug prosecution and a tampering charge related to the contact with the witness). In the second line of decisions examined by the Whittlesey court, the focus is entirely on whether the facts underlying the charged and uncharged offenses are either “closely related” or “inextricably intertwined,”; two terms which we take to mean the same thing. In these opinions, the unity-ing theme is that the right to counsel will carry over from the pending charge to the new charge only where the new charge arises from the same acts and factual predicates on which the pending charges were based. Whittlesey, 665 A.2d at 235 (citations omitted). In determining whether the same acts and factual predicates underlie both the pending and the new charges, courts have looked for similarities of time," }, { "docid": "13432566", "title": "", "text": "1778. . — U.S. —, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). . 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). . 459 U.S. at 368-69, 103 S.Ct. at 679-80. . 28 F.3d at 446. . United States v. Carpenter, 963 F.2d 736, 739 (5th Cir.), cert. denied, — U.S. —, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992). . Carpenter, 963 F.2d at 739-40. . United States v. Cruz, 22 F.3d 96, 98 n. 7 (5th Cir.), cert. denied, — U.S. —, 115 S.Ct. 280, 130 L.Ed.2d 196 (1994). . The Sixth Amendment applies only to the specific charged offense. Carpenter, 963 F.2d at 739. If however, the charges to which the Sixth Amendment right has been invoked and the new charges are \"inextricably intertwined,” the Sixth Amendment right may extend to the new charges. Id. at 740. See United States v. Cooper, 949 F.2d 737, 743-44 (5th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992). In this case, the federal charges and state charges were identical, and therefore the invocation of the Sixth Amendment right on the state charges was sufficient to invoke the right on the federal charges. . Carpenter, 963 F.2d at 734. . See United States v. Rodriguez, 948 F.2d 914, 916 (5th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 2970, 119 L.Ed.2d 590 (1992). . Bradford v. Whitley, 953 F.2d 1008, 1010-11 (5th Cir.), cert. denied, — U.S. —, 113 S.Ct. 91, 121 L.Ed.2d 53 (1992). . In a recent decision, this Court questioned whether the \"miscarriage of justice” standard is distinguishable from the \"sufficiency of evidence” standard employed if a defendant does make a motion for acquittal at the conclusion of the trial. See United States v. Pennington, 20 F.3d 593, 597 n. 1 (5th Cir.1994). However, because only the Court sitting en banc can reverse precedent, Lauiy’s insufficiency claim must be reviewed under the “miscarriage of justice\" standard. See United States v. Sias, No. 93-5475, at 3-4 & n. 1," }, { "docid": "10531754", "title": "", "text": "several months between Quinn’s statements to Seaton and the starting point of the adverse criminal judicial proceedings against Quinn on the subornation offense. We conclude, therefore, that Quinn’s Sixth Amendment right to counsel had not yet attached with respect to this offense at the time of his Thanksgiving 1995 statements. Quinn argues, however, that the subornation of perjury charge was “inextricably intertwined” with the firearms possession charge. Where the offense for which incriminating comments are being elicited is inextricably intertwined with an offense to which the Sixth Amendment protections have already attached, those protections cover both offenses. United States v. Laury, 49 F.3d 145, 150, n. 11 (5th Cir.1995) (citing United States v. Carpenter, 963 F.2d 736, 740 (5th Cir.), cert. denied 506 U.S. 927, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992)). Quinn maintains that, because the same evidence (concerning whether Quinn was driving the Grand Am) was crucial to both offenses, the firearms possession and the subornation of perjury, offenses are inextricably intertwined. Quinn’s reliance on the similarity of the evidence as the standard of whether the two offenses are inextricably intertwined is misplaced. The Moulton court identifies the correct standard as whether the conduct leading to each offense is the same. Moulton, 474 U.S. at 179-80, 106 S.Ct. at 489. Possession of a firearm and subornation of perjury involve two distinct types of conduct, the one not leading necessarily to the other. Also, the distinctly separate offenses of firearms possession and subornation of perjury did not occur within a close temporal proximity. See Carpenter, 963 F.2d at 741 (no close relatedness of offenses where the warrant for one predated the events leading up to the warrant for the other). Using the standards applied in Moulton and Carpenter, we cannot find that the subornation of perjury charge was so inextricably intertwined with the firearms possession charge that Quinn’s Sixth Amendment right to counsel, as triggered by the firearms possession charge, attached also to his subornation of perjury charge at the time of his statements to Seaton. Therefore, there was no Sixth Amendment violation in the admission of any of" }, { "docid": "18629346", "title": "", "text": "the defendant should remain apart. Helium’s final argument contests the trial court’s admission of statements he made to investigators following his eseape attempt prior to trial. Helium contends that the interrogation of him outside the presence of his counsel violated his Sixth Amendment right to counsel, despite the fact that he purported to waive this right after being read his Miranda rights. The Sixth Amendment states that “[i]n all criminal trials, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” As Helium correctly states, the right, once invoked, cannot be waived in a subsequent police-initiated custodial interview. Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 1411, 89 L.Ed.2d 631 (1986). There is no doubt that Helium’s right to counsel had attached and been invoked prior to his eseape attempt and subsequent interrogation. The right to counsel, however, is offense-specific, McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991), and “cannot be invoked once for all future prosecutions.” Id. Thus, the valid invocation of the right as to one charge will typically have no effect on different charges for which the defendant has not yet been arraigned. Id.; Hendricks v. Vasquez, 974 F.2d 1099, 1104 (9th Cir.1992). At least one circuit has suggested a narrow exception to this general rule in cases where the two charges are “inextricably intertwined,” United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992), or arise from the same incident. See Hendricks, 974 F.2d at 1104. This ease falls squarely within the rule laid down in McNeil. Helium does not dispute that the police interrogation occurred during the investigation of Helium’s escape attempt. The attempt was a new crime with distinct elements from the various charges stemming from the events in the bar. Thus, even if we were to adopt the narrow exception applied by the Ninth Circuit, we would reach the same result. See Hendricks, 974 F.2d at 1104-05 (refusing to apply exception where defendant was first charged with interstate flight to avoid murder prosecution, and later charged for murder;" }, { "docid": "10531753", "title": "", "text": "v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), a plurality of the Court concluded that the right to counsel for an offense attaches at the initiating point of the adversarial process. Id. at 689, 92 S.Ct. 1877; see also McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (right to counsel is offense-specific, not attaching until the commencement of adverse judicial criminal proceedings). Even without a clear, fact-based delineation marking when the Sixth Amendment right to counsel attaches, we can determine that adverse judicial criminal proceedings had not commenced at the point when Quinn made his remarks to Seaton. Quinn’s admissions to Seaton occurred on Thanksgiving-night in 1995. Under the facts of the present case, adverse criminal proceedings on Quinn’s subornation offense did not commence until months later. Quinn was indicted for subornation of perjury on July 24, 1996. His initial hearing- was not held until August 5, 1996, and counsel was not appointed until August 6, 1996. Under all theories, there was a delay of several months between Quinn’s statements to Seaton and the starting point of the adverse criminal judicial proceedings against Quinn on the subornation offense. We conclude, therefore, that Quinn’s Sixth Amendment right to counsel had not yet attached with respect to this offense at the time of his Thanksgiving 1995 statements. Quinn argues, however, that the subornation of perjury charge was “inextricably intertwined” with the firearms possession charge. Where the offense for which incriminating comments are being elicited is inextricably intertwined with an offense to which the Sixth Amendment protections have already attached, those protections cover both offenses. United States v. Laury, 49 F.3d 145, 150, n. 11 (5th Cir.1995) (citing United States v. Carpenter, 963 F.2d 736, 740 (5th Cir.), cert. denied 506 U.S. 927, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992)). Quinn maintains that, because the same evidence (concerning whether Quinn was driving the Grand Am) was crucial to both offenses, the firearms possession and the subornation of perjury, offenses are inextricably intertwined. Quinn’s reliance on the similarity of the evidence as the standard" }, { "docid": "8094580", "title": "", "text": "475 U.S. 625, 629, 106 S.Ct. 1404, 1407, 89 L.Ed.2d 631 (1986). However, the sixth amendment is offense-specific. McNeil v. Wisconsin, — U.S. -, -, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). In other words, if a defendant is arraigned on one charge, then the sixth amendment right to counsel attaches to that charge but not to a different charge for which the defendant has not yet been arraigned. We have recognized a limited exception to that rule, however, when the two charges are “so inextricably intertwined ... that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.” United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992). In addition, where state and federal authorities act in collusion to circumvent a defendant’s right to counsel, the sixth amendment right may extend from a state charge to a federal one when the two charges arise “from the same incident.” United States v. Martinez, 972 F.2d 1100, 1101, 1102, 1105 (9th Cir.1992) (state and federal charges identical: felon in possession of firearm). Hendricks fits into neither the Hines dictum nor the Martinez exception. Hendricks was arraigned in Dallas on a charge of interstate flight to avoid prosecution (for murder), but was interrogated by San Francisco police on a charge of murder. Although not wholly unrelated, the two crimes have totally independent elements. The murders were separate incidents from the flight; they were neither “inextricably intertwined” with the flight charge nor did they arise from the same conduct. As uncharged and distinct “additional crimes,” they were not subject to the sixth amendment right to counsel that attached when Hendricks was arraigned on his flight charge. McNeil, — U.S. at ---, 111 S.Ct. at 2207-08 (quoting Maine v. Moulton, 474 U.S. 159, 179-180, 106 S.Ct. 477, 488-89, 88 L.Ed.2d 481 (1985)). Hendricks’ fifth amendment challenge to the admission of his two statements is similarly unavailing. Hendricks’ first statement was a product of proper Miranda procedure and not of coercion. Once a suspect who is in custody and is being interrogated asserts" } ]

[ { "docid": "6357547", "title": "", "text": "also West Virginia Rule of Criminal Procedure 32(c); cf. Hazelwood v. Arnold, 539 F.2d 1031 (4th Cir.1976) (under federal law, ordering of a presentence investigation and report is discretionary). In addition to the lack of an absolute right to a presentence report under the state statute, there is no federal constitutional right to a presentence investigation and report. Vines v. Muncy, 553 F.2d 342, 350, n. 26 (4th Cir.) cert. denied, 434 U.S. 851, 98 S.Ct. 163, 54 L.Ed.2d 120 (1977); Lawson v. Riddle, 401 F.Supp. 410, 412 (W.D.Va.1975); but see Rule 32(c)(1), Federal Rules of Criminal Procedure. Moreover, “[i]n the ordinary case the issue of whether petitioner is entitled to a pre-sentence report at all is a matter of state law and not cognizable under a petition for a writ of habeas corpus.” Stamper v. Baskerville, 531 F.Supp. 1122, 1127-28 (E.D.Va.1982). If the attack on the sentencing was limited to the presentence investigation issue, the Court could confidently leave this area of inquiry and move on. Elswick, however, in complaining of the lack of a presentence report, incorporates an argument aimed at the method by which the trial judge sentenced him. For purposes of clarity, the Court deems it advisable to set out the remarks of the trial court, at sentencing: “[DEFENSE COUNSEL]: Your Hon- or, has the Court ordered a presentence investigation to be done in this matter? THE COURT: I feel that in this case, because of the information and evidence that the defendant has already furnished as well as the evidence of the other witnesses, that further inquiry into the defendant’s character and conduct and habits is not necessary in this case. I, therefore, believe that I ought to pronounce judgment according to law without further inquiry into the defendant’s background, his character, conduct, and habits. There were various factors brought to my attention by counsel for the defense during the trial and pretrial motions as well as factors brought to the attention of this court by the prosecuting attorney in the presence of the defense of this case. It has even come to my attention—of" } ]

[ { "docid": "21886791", "title": "", "text": "for his cooperation. Tafero’s and Jacobs’ trials were ordered severed. Jacobs was convicted on all counts. The judge imposed a death sentence despite the jury’s recommendation of a life sentence. On direct appeal, the Supreme Court of Florida, sua sponte, ordered the trial judge to divulge whether he imposed the death sentence after considering any information not known to Jacobs. The trial judge revealed that he had considered a presen-tence investigation report (PSI) unavailable to Jacobs. The Supreme Court ordered the lower court to release the PSI. Upon review, Jacobs’ counsel discovered that Rhodes, the state’s most important eyewitness, had undergone a confidential polygraph examination and that his statements during this examination differed in several material respects from his trial testimony. The Florida Supreme Court temporarily-relinquished its jurisdiction so that the trial court could evaluate whether withholding the polygraph report violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial court found that the prosecution did not improperly withhold the polygraph report because it was consistent with Rhodes’ trial testimony. This ruling was then consolidated with the rest of the appeal. The Florida Supreme Court affirmed the conviction but reversed the death sentences. Jacobs v. State, 396 So.2d 713 (Fla.1981). Jacobs was resentenced to two concurrent life sentences on the murder counts to be served with the third concurrent life sentence on the kidnapping count. On November 25, 1985, Jacobs filed a petition for a writ of habeas corpus in federal district court. Jacobs alleged: (1) the state suppressed Rhodes’ statements to the polygraph examiner in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) the trial court improperly refused to instruct the jury fully on Jacobs’ theory of defense or on the limits of aiding and abetting; (3) the state violated Jacobs’ Fifth Amendment rights by introducing post-arrest statements; (4) the trial court violated her right to due process by admitting unnecessary and graphically gory photographs. The magistrate recommended that the petition be denied. While the report was under consideration by the district court, Jacobs learned" }, { "docid": "5836225", "title": "", "text": "application of clearly estab lished Supreme Court precedent. This court declines petitioner’s invitation to reweigh the evidence and denies habeas relief on this issue. E. Psychological Questionnaire Williams claims that his rights to due process and equal protection were violated when the trial court judge had a psychological profile secretly compiled on petitioner and relied on that profile in determining petitioner’s sentence, rendering the sentence unreliable. Prior to sentencing, Judge Letsinger had the probation department prepare a psychological profile of Williams. Although Judge Let-singer later stated that the questionnaires were routinely attached to the pre-sentence investigation report, Williams’ counsel did not recall having seen the questionnaire at the time of sentencing. 706 N.E.2d at 162. After the post-conviction proceedings had been concluded and while Williams’ denial of post-conviction relief was on appeal, counsel discovered the questionnaire and petitioned the Indiana Supreme Court to consider the effects of the questionnaire on Williams’ sentence. The Indiana Supreme Court had previously addressed the issue of Judge Letsinger’s questionnaires in Matheney v. State, 688 N.E.2d 883 (Ind.1997) and had determined that an independent review of the aggravating and mitigating circumstances to determine if the sentence was appropriate would be the appropriate course. The court conducted the same review in Williams’ case and determined that the aggravating factors outweighed the mitigating circumstances, without reference to the psychological questionnaire, and thus upheld the sentence. 702 N.E.2d at 163. This court has also reviewed Judge Letsinger’s psychological questionnaire in Matheney v. Anderson, 60 F.Supp.2d 846, 865 (N.D.Ind.1999), aff'd. in part, rem’d in part, 253 F.3d 1025 (7th Cir.2001), and found it to pass constitutional muster. Under Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), a defendant has the right to hear all information used in the capital decision making process. Specifically Gardner banned the use of an undisclosed pre-sen-tence questionnaire by the sentencing judge in imposing a death sentence. Id. at 363, 97 S.Ct. 1197. In both Matheney and this case, the Indiana Supreme Court found that Judge Letsinger did not actually rely on the questionnaire in imposing the death sentence. 706" }, { "docid": "23404774", "title": "", "text": "any mitigating effect does not begin to tip the balance of aggravating and mitigating factors in favor of petitioner. Petitioner has simply failed to show that counsel’s performance was so deficient during the sentencing phase that this court cannot rely on the result as being just. (3) Failure to Object to Inflammatory Statements When challenging the denial of post-conviction relief in state court, petitioner argued that the trial judge improperly considered prejudicial hearsay statements and accusations relating to non-statutory aggravating circumstances during the sentencing phase. The record reflects that following the guilt/innocence phase of the trial, the court ordered a presentence investigation (PSI). A PSI report, completed on April 30, 1981, provided information relating to the circumstances of the offense, petitioner’s alibi, and personal information, including petitioner's criminal record, social history, marital status, education, religion, interests, activities, health and employment. In addition, a “confidential evaluation” was prepared by the Department of Corrections containing personal statements by several of Miss O’Farrell’s relatives and petitioner’s sister. The O’Farrell family generally expressed the opinion that petitioner was remorseless, beyond rehabilitation, and deserving of the death penalty. Petitioner alleged that the consideration of these inflammatory statements prejudiced his sentencing. The Florida Supreme Court ruled that petitioner’s claim was foreclosed from collateral review because it was not raised on direct appeal. Idghtboume, 471 So.2d at 28. Thereafter, in his Petition for Writ of Habeas Corpus, petitioner recast the claim as an error by trial counsel in failing to object to the trial judge’s consideration of the statements in the PSI report. The jury had no access to the report. The district court assumed that federal review of the claim was not precluded when couched in terms of ineffective assistance of counsel. Nevertheless, the district court found petitioner’s contention meritless because of the absence of a reasonable probability that any deficiency on the part of counsel in failing to object to judicial consideration of the inflammatory statements adversely affected the outcome of petitioner’s sentencing. Lightboume, No. 85-136-Civ-OC-16, slip op. at 22. We agree. Federal law places few limitations upon the information which a trial judge may" }, { "docid": "23404742", "title": "", "text": "the Marion County Jail testified that petitioner “knew too much” about the details of Nancy’s death and made some incriminating statements during the course of their conversations. According to Chavers, petitioner made references indicating that he entered Nancy’s house, encountered her as she was coming out of the shower, forced her to engage in sexual intercourse, and shot her despite pleas for mercy. This version of the facts was corroborated by Theophilus Carson, another cellmate in the Marion County Jail. According to Carson, petitioner admitted forcing Nancy to have sex, shooting her because she could identify him, and taking a necklace and some money. On April 25, 1981, the jury returned a guilty verdict and a judgment of conviction was entered by the circuit court for premeditated murder and felony murder in the perpetration of burglary and sexual battery. On May 1, 1981, the jury recommended the death penalty. After considering the pre-sentence investigation report and weighing the aggravating and mitigating circumstances, the circuit court imposed the sentence of death. B. Procedural History Petitioner’s conviction and sentence were affirmed on direct appeal. Lightbourne v. State, 438 So.2d 380 (Fla.1983), cert, denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984). The Governor of Florida heard argument in favor of clemency on May 10, 1984. Approximately one year later, the Governor determined that executive clemency was not warranted and signed a death warrant authorizing petitioner’s execution on June 4, 1985. Petitioner filed an emergency application for a stay of execution on May 31, 1985. The state circuit court construed the application as a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850. The circuit court denied both the stay and the rule 3.850 motion. The Florida Supreme Court affirmed. Lightbourne v. State, 471 So.2d 27 (Fla.1985). A Petition for a Writ of Habeas Corpus was filed on June 3,1985, in federal district court. The district court reviewed as much of the record as possible on the eve of petitioner’s scheduled execution and en tered an order staying the death sentence pursuant to 28 U.S.C. § 2254. On August 20, 1986, the" }, { "docid": "7411761", "title": "", "text": "and to the court below on his PCRA petition. 6. He was denied his constitutional right to a fair trial and to due process of law as a result of prosecutorial misconduct in the sentencing argument and trial and post-trial counsel were ineffective in failing to object and preserve this error on direct appeal or in the court below on PCRA petition. The Supreme Court found that the prosecutor may have committed error in requesting the jury to be as cold and ruthless as Petitioner had been when he murdered the victims and in telling the jury that the “best witnesses,” i.e., the victims, “are not here,” but if they were, he was “sure” that “they would tell you that it was not my choice to go this way, it was not my choice to go in that kind of pain.” Nevertheless, the Supreme Court found that petitioner had failed to demonstrate that these remarks prejudiced the jury or that if they did, this error was also harm less given the overwhelming evidence of Petitioner’s guilt. Accordingly, the trial court’s denial of Petitioner’s PCRA petition was affirmed. By way of the petition for writ of habeas corpus which is now before this Court, Mr. Peterkin continues to seek to have his convictions and sentences overturned. In addition to reiterating the claims which he raised on direct appeal and in his initial PCRA petition, however, Mr. Peterkin now also asserts the following grounds for the relief sought: 1. That the Commonwealth improperly withheld exculpatory evidence and presented inaccurate, misleading and false evidence and argument to the jury (with regard to the testimony of Sherry Dig-gins and Officers McCabe and Kane, to the statements of Arlene Foster, to fingerprint evidence and the results of the polygraph examination given to Stanley Trader). 2. That trial counsel was ineffective at the pre-trial stage in: —failing to conduct proper discovery; —failing to investigate the crime scene; —failing to review fingerprint and ballistic evidence; —failing to consult and retain forensic experts; —failing to investigate the background and potential involvement of Stanley Trader; —failing to investigate the" }, { "docid": "7925915", "title": "", "text": "133-34, 369 N.W.2d 274 (1985). In Petitioner’s case, the sentencing judge explained his reasons for the harsher sentence in two sentences, as set forth above. The Michigan Court of Appeals, in a brief one-paragraph discussion, found that the reasons for the deviation were “sufficiently compelling and substantial.” The Michigan Supreme Court affirmed in a per curiam opinion. The actions taken by the Michigan Court of Appeals and Michigan Supreme Court, including their cursory treatment of Petitioner’s argument, demonstrate that the guidelines are merely advisory. The fact that the Court of Appeals addressed Petitioner’s argument at face value is not an acknowledgement that a sentencing court can depart from the guidelines only if there are substantial and compelling reasons; the Court of Appeals simply found that, even if such a right existed, the sentencing court’s reasons were substantial and compelling. Petitioner simply had no right to expect that the guidelines would be rigidly applied in determining his sentence. Even if the State had created such a right, there is no showing that the State appellate courts were incorrect in finding substantial and compelling reasons for deviating from the guidelines. Petitioner received due process. Petitioner does not claim that the sentence imposed constitutes cruel and unusual punishment in violation of the Eighth Amendment. Therefore, because Petitioner argues solely under the state law on sentencing, his claim is not cognizable in habeas because it is a state law claim. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Long v. Smith, 663 F.2d 18 (6th Cir.1981), cert. denied, 455 U.S. 1024, 102 S.Ct. 1724, 72 L.Ed.2d 143 (1982). B. The second habeas claim is that the sentence is improper because the trial court relied upon a presentence report that contained inaccurate information regarding prior convictions. The record reveals that at sentencing, defense counsel informed the court that the presentence report contained two inaccuracies. First, it erroneously listed an assault that Petitioner was involved in as a juvenile. Second, a 1981 Georgia conviction was shown as three counts of three separate offenses when it should have been listed as one" }, { "docid": "18869834", "title": "", "text": "underlying the alleged constitutional error. Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938); Bellew v. Gunn, 532 F.2d 1288, 1290 (9th Cir.1976). Relying on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), McKenzie argues that a showing that there was an off-the-record contact between the prosecutor and the sentencing judge is sufficient to shift the burden to the State to prove that matters relevant to sentencing were not discussed and that the meeting did not affect his sentence. Gardner does not support this novel rule, and the principles of federalism, comity and finality undergirding federal habeas jurisdiction counsel against it. In Gardner, after the jury retired to deliberate as to sentencing in a death case, the state trial judge announced he would order a pre-sentence investigation report. Although the jury found that mitigating circumstances outweighed aggravating circumstances and returned an advisory sentence of life imprisonment, the trial judge sentenced Gardner to death, basing his decision in part on “the factual information contained in said pre-sentence investigation.” Id. at 353, 97 S.Ct. at 1202 (quotations omitted). Portions of that report were never disclosed to defense counsel. Not surprisingly, the Supreme Court concluded that “petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.” Id. at 362, 97 S.Ct. at 1207. Gardner’s case thus differs from McKenzie’s in a crucial respect: In Gardner, no one disputed that the information the sentencing judge read in the pre-sentence report was highly relevant to sentencing; that, after all, was the purpose of the report. Nor was there any doubt the judge relied on this information in making his sentencing decision. Both facts — which lie at the heart of the constitutional error in Gardner — were taken for granted. But what was assumed in Gardner is hotly contested in McKenzie; it’s the very question we ordered answered on remand: “[W]ere [matters] discussed that did or could have influenced the judge in his" }, { "docid": "23260620", "title": "", "text": "KENNEDY, Circuit Judge. Respondent-appellant, State of Ohio, appeals the District Court’s order granting habeas corpus relief to petitioner-appellee, Donald Ray Harpster, under 28 U.S.C. § 2254. The District Court found that the state court in petitioner’s criminal trial declared a mistrial over defense objection without manifest necessity, thereby barring retrial of petitioner on double jeopardy grounds. For the following reasons, we AFFIRM. I. Facts A. Background In the summer of 1995, petitioner lived with his girlfriend and her three year old daughter. On August 31, 1995, the girlfriend’s daughter told her mother that petitioner had touched her private parts. The girlfriend and her daughter moved out of petitioner’s house and went to the Children’s Hospital Care Center, where the daughter repeated her allegations to a pediatric nurse-practitioner. On September 13, 1995, Akron Police Detective Edward Mathews asked petitioner to accompany him to the police station to make a statement regarding the alleged sexual abuse. After an interview lasting from thirty to forty-five minutes, petitioner denied sexually abusing his girlfriend’s daughter and returned home. The investigation continued. On October 2 and again on October 10, 1995, Akron Police detectives gave petitioner polygraph examinations. The results of these examinations indicated deceptiveness, but petitioner still denied the allegations and returned home after each one. Detective Mathews questioned petitioner a fourth time on the morning of October 25, 1995. • During this interrogation, Detective Mathews had petitioner read Ohio Revised Criminal Code § 2907.12, which stated that a person convicted of felonious sexual penetration “shall be sentenced to life.” During the same interrogation, Mathews suggested to petitioner, but did not promise or guarantee, that there was a possibility that he could receive remedial counseling instead of a life sentence if he confessed. Petitioner then confessed, and was ai’rested and charged with felonious sexual penetration. B. State Court Proceedings The state criminal trial began on April 15, 1996. During a pre-trial hearing, petitioner moved to suppress his confession as involuntary. Respondent moved to exclude the details of the penalty that attaches to felonious sexual penetration, namely, a mandatory life sentence. The trial court allowed petitioner’s" }, { "docid": "7925918", "title": "", "text": "guidelines, those are the reasons. (T. pg. 3-4). Thus, the juvenile convictions, if any, were not considered and the Georgia convictions were not treated as multiple count convictions. Petitioner’s habeas claim does not allege that the presentence report contained any other inaccuracies. In passing sentence, a court should be provided as much accurate information as possible in order to render an appropriate sentence. Due process requires that a defendant be afforded an opportunity to refute information relied upon by the sentencing judge, if such information can be shown to have been materially false. Collins v. Buchkoe, 493 F.2d 343 (6th Cir. 1974); United States v. Cesaitis, 506 F.Supp. 518 (E.D.Mich.1981). Petitioner has failed to demonstrate in his petition that the sentencing court relied upon materially false information. Thus, his claim is without merit. Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is DENIED. As I read the Supreme Court’s administrative orders, and the language of the Court of Appeals in Ridley, supra, it was not even necessary for the sentencing judge to explain his reasons for the deviations to Petitioner. Since the purpose of giving reasons is simply to help the Supreme Court improve the guidelines, it would seem that a sentencing judge could, instead, draft a letter to the sentencing guidelines administrative unit explaining the deviation." }, { "docid": "17249211", "title": "", "text": "properly be construed as an exercise of her Fifth Amendment privilege against self-incrimination” is the law of this case. (Docket No. 89 at 2-3). Petitioner now presents the same issue with a different twist: although the Court did not err, as found by the First Circuit, counsel’s legal assistance in this regard was constitutionally defective under the Sixth Amendment because his intent was to unilaterally safeguard her from incriminating herself, ignorant that the Fifth Amendment was not implicated, against her wishes. Defendant’s silence in the aftermath of counsel’s alleged misrepresentation is notable. On December 9, 1994, when defendant addressed the Court at the beginning of the sentencing healing, upon the Court’s inquiry, petitioner acknowledged being well informed by her attorney as to the Pre-Sentence Investigation Report and as to the fact that she saw no reason to postpone sentencing. (Docket No. 84 at 3). Petitioner also personally addressed the Court in mitigation of sentence as to her repentance, shame, and the impact of her wrongdoing upon her children and parents. (Docket No. 84 at 5-6). We agree with respondent’s view that petitioner’s allegation that counsel’s decision was “ill informed, carried out in direct conflict with [her] wishes and directions and severely detrimental to the outcome of the hearing” is conclusory. Even if petitioner’s counsel advised her not to testify, the record does not support the proposition that he forbade her from doing so. A claim of ineffective assistance of counsel involves two showings: First, the petitioner must demonstrate that his or her counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms of competence, and, second, he or she must establish a reasonable probability that but for counsel’s unprofessional errors the outcome of the [proceeding] would have been more favorable. A failure to make either showing makes further scrutiny unnecessary. Powell v. Bowersox, 112 F.3d 966, 968 (8th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 708, 139 L.Ed.2d 650 (1998), citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, petitioner must show more than deficient" }, { "docid": "7925917", "title": "", "text": "count each on three separate offenses. Defense counsel argued that correction of these inaccuracies would result in a guideline sentence of only three to six years. The court’s sentence was, in part, as follows: Well, I guess I hadn’t looked at that that carefully and simply assumed that it was a single conviction of each count, but if that’s the case, that’s the way the record should show and I certainly am not paying any attention to a juvenile record after these years have gone by. If he has one, it doesn’t matter to me. What does matter, first of all, the seriousness of the offense, itself, and secondly, you were on parole when you did it. Now, I simply don’t believe that I could, assuming you’re correct, Mr. Caswell, in determining what the guidelines call for, I simply do not believe it’s appropriate to limit the sentence to that extent when you committed this offense, well-planned I might say, while you are on parole for second degree murder so if I’m not following the guidelines, those are the reasons. (T. pg. 3-4). Thus, the juvenile convictions, if any, were not considered and the Georgia convictions were not treated as multiple count convictions. Petitioner’s habeas claim does not allege that the presentence report contained any other inaccuracies. In passing sentence, a court should be provided as much accurate information as possible in order to render an appropriate sentence. Due process requires that a defendant be afforded an opportunity to refute information relied upon by the sentencing judge, if such information can be shown to have been materially false. Collins v. Buchkoe, 493 F.2d 343 (6th Cir. 1974); United States v. Cesaitis, 506 F.Supp. 518 (E.D.Mich.1981). Petitioner has failed to demonstrate in his petition that the sentencing court relied upon materially false information. Thus, his claim is without merit. Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is DENIED. As I read the Supreme Court’s administrative orders, and the language of the Court of Appeals in Ridley, supra, it was not even necessary for the sentencing judge" }, { "docid": "10421509", "title": "", "text": "lighter sentence might have been imposed. Petitioner does not challenge the validity of his guilty plea. Petitioner’s motion to set aside his sentence was denied. The Appellate Division Third Department denied petitioner’s motion for leave to appeal. Thus, petitioner having exhausted his state remedies, commenced this federal habeas corpus proceeding on February 6, 1985, arguing denial of effective assistance of counsel. MAGISTRATE’S REPORT & RECOMMENDATION The Magistrate recommended that the petition be denied and dismissed. In reaching that decision, the Magistrate applied the two-prong test for ineffective assistance of counsel adopted by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Court stated: [T]he defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process. Id. at 687, 104 S.Ct. at 2064-65. The Magistrate concluded that petitioner had not met that test because although petitioner’s attorney “may have been mistaken as to the possible range of sentences available, he continually requested the ‘minimum’ sentence for petitioner.” Report-Recommendation at 2. The Magistrate was also persuaded by the fact that petitioner’s attorney had prepared a pre-sentencing memorandum containing letters and reports regarding petitioner’s character and strongly requesting leniency. Significantly, the Magistrate also stated that there was never any proof, or even an allegation, that the sentencing judge was under the same misconception as petitioner’s attorney. OBJECTIONS Petitioner objects to the Report and Recommendation on several grounds. First, petitioner asserts that the Magistrate failed to satisfy the first prong of the Strickland test because he failed to make a finding of “unprofessional error.” Second, petitioner, asserts that the Magistrate erroneously applied" }, { "docid": "7397807", "title": "", "text": "a replacement counsel to present Brewer’s automatic appeal of the death sentence to the Indiana Supreme Court. Brewer’s second counsel presented numerous allegations of error on appeal, which the Court rejected in Brewer v. State, 275 Ind. 338, 417 N.E.2d 889 (1981) {Brewer I). Brewer subsequently moved for, and was denied, post-conviction relief in the Superior Court. The Indiana Supreme Court also affirmed Brewer’s conviction and sentence on his appeal of the denial of post-conviction relief. In rejecting Brewer’s argument that it was error for the trial judge to refuse to grant a continuance for the trial attorney to investigate and prepare evidence regarding his psychiatric history, the Indiana Supreme Court held that there was no prejudice arising from trial counsel’s failure to present Brewer’s mental history to the jury during the penalty phase. “Petitioner also fails to demonstrate any prejudice warranting relief. He introduced twelve (12) documents at the post-conviction hearing, alleging they comprised the material for which he requested a continuance. The materials consisted of reports dated no later than Petitioner’s sixteenth (16th) year, primarily demonstrating a record of juvenile delinquency and a low I.Q., often labeling Petitioner as mentally retarded. However, the trial court, having denied the motion for a continuance due to the sequestration of the jury, appointed a psychologist to examine Petitioner before the trial court imposed sentence. The psychologist’s report contained mitigating information equivalent to the reports entered at the post-conviction hearing. Therefore, the trial court took into consideration the psychologist’s opinion that Petitioner is in the lowest seven percent of the population as to general intelligence, acts on feelings and impulses without intelligent reflection or analysis and tends not to learn from experiences. Further, the trial court had before it the pre-sentence report demonstrating that Petitioner had problems conforming his behavior to the law from an early age. Accordingly, Petitioner was not prejudiced as the major factors he desired to have considered were presented before a final determination of sentencing was made by the trial judge.” Brewer II, 496 N.E.2d at 374. In this habeas action, the district court rejected Brewer’s claim of" }, { "docid": "6620579", "title": "", "text": "that the murder victim had been cooperating with the authorities in a drug investigation of petitioner. This allegation was relied on by the judge at sentencing. He stated that “Morales, according to the testimony at trial, was killed because he allegedly was going to rat to the police.” There, was, however, no proof of this at trial. Nor was there proof that petitioner had ever participated in a drug sale. In fact, the information came from the report. The circumstances show that the information regarding an alleged motive and petitioner’s alleged drug involvement were never presented at trial and subjected to cross-examination, and that petitioner never saw the pre-sentence report and was therefore precluded from rebutting it. This information was never tested in any way for truth or falsity. Indeed, petitioner was not even aware of the existence of this information. Petitioner contends that he has never been involved in drug trafficking and it is undisputed that he had no prior arrests. The judge’s reliance on this false information renders the sentencing violative of due process. Memorandum of Law in Support of Amended Petition at 8-9. Given the fact that Perez indeed testified that Camara told him that petitioner wanted Morales killed “because he was ratting to the police,” petitioner’s counsel, needless to say, can hardly be deemed to have been ineffective for failing to point out to the court that there had been no such testimony. Had petitioner’s current attorneys reviewed the transcript, they should have seen that such testimony did exist. Moreover, they had two chances to learn that the claim they were making was wrong. The very same language of the court — that Morales was killed because he was “ratting to the police” — also appears at page 105 of the judge’s charge to the jury which was, of course, given long before the presentence report was ever written. Trial counsel’s alleged failure to discuss the presentence report with petitioner does not amount to a Sixth Amendment violation. Petitioner claims that if he had seen the report, he could have challenged its incorrect assertions at the" }, { "docid": "16363824", "title": "", "text": "in his pre-sentence report (“PSR”). Lechner also argued that his separate convictions and consecutive sentences for reckless homicide and homicide by intoxicated use of a vehicle constituted double jeopardy. Lechner received no relief in state court, State v. Lechner, 217 Wis.2d 392, 576 N.W.2d 912 (1998), and timely filed this habeas petition. The district court denied his petition and he appeals. II. We first address Lechner’s contention that the state court violated his due process rights by relying on erroneous information in his pre-sentence report. In reviewing a district court’s ruling on a petition for a writ of habeas corpus, this court reviews the district court’s findings of fact for clear error and its rulings on issues of law de novo. Rittenhouse v. Battles, 263 F.3d 689, 695 (7th Cir.2001). In his habeas petition, Lechner bears the burden of showing that the Wisconsin Supreme Court rejected his constitutional challenges in a manner 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 “was based on the unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). See Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Washington v. Smith, 219 F.3d 620, 627 (7th Cir.2000). Finally, issues of fact found by a state court are presumed to be correct unless the petitioner rebuts this presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Williams v. Parke, 133 F.3d 971, 973 (7th Cir.1997). Against this backdrop we consider Lechner’s argument that his rights to due process were violated because the trial court erroneously relied on information in his pre-sentence report that indicated that Lechner had four prior criminal convictions when, in fact, he had just one prior conviction and three prior arrests. The parties do not dispute that the criminal record information before the state sentencing court in Lechner’s case was inaccurate. The error apparently resulted because the FBI-CIB record for Lechner included only his prior arrests and the" }, { "docid": "6085174", "title": "", "text": "background information provided above because those reports relied on varied, discoverable sources, including school records, hospital records, prison records, prison medical records, police records, statements by family members and acquaintances, previous psychiatric and psychological evaluations, and pre-sentence investigation reports. While production of the F.B.I. records on Petitioner’s background would have assisted counsel’s investigation, F.B.I. retention of those records did not render counsel helpless. Under Williams, Carter, Skaggs, Austin and Glenn, we find counsel’s performance, given the combination of Petitioner’s unin-vestigated personal history and the consequently deficient penalty phase closing argument, to be objectively unreasonable. Petitioner’s negative responses to the trial court’s questions regarding the option for a pre-sentence investigation and mental evaluation do not establish Faretta as controlling in the face of substantial precedent by the Supreme Court and this Court on counsel’s independent obligation to investigate the personal background of a defendant in preparation for the penalty phase of a capital trial. However, for such objectively unreasonable performance to constitute ineffective assistance of counsel, Strickland requires that Petitioner show prejudice, satisfied by showing a reasonable probability that but for such performance the trial outcome would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “Reasonable probability” is “a probability sufficient to undermine confidence in the outcome,” but does not require showing that counsel’s unreasonable performance more likely than not altered the outcome in the case. Id. at 693-94, 104 S.Ct. 2052. “Mitigating evidence unrelated to dangerousness may alter the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death-eligibility case.” Williams, 120 S.Ct. at 1516. “[T]he graphic description of [defendant’s] childhood, filled with abuse and privation, or the reality that he was ‘borderline mentally retarded,’ might well have influenced the jury’s appraisal of his moral culpability.” Id. at 1515 (citation omitted). The sentencing phase is likely to be “the stage of the proceedings where counsel can do his or her client the most good,” Glenn, 71 F.3d at 1207 (quoting Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989)). It" }, { "docid": "17249210", "title": "", "text": "be under oath. You make the decision. It’s your call and it’s your client’s position if she is going it (sic) take the stand whether it be for one question or one-hundred questions.” (Docket No. 84 at 81). In denying petitioner’s request for a downward depai'ture the Court’s sentencing findings made reference to the fact that petitioner “would not even allow the court to assess her credibility and her alleged good intentions by observing her demeanor on the witness stand. She would have us believe, solely through her daughter’s testimony, that taking care of her parents when they needed it has been her life long desire and that this is the moment when they need per (sic), precisely at the time that she faces incarceration.” (Docket No. 82 at 12). On direct appeal petitioner assigned error to the Court’s consideration of her refusal to take the stand at sentencing as a breach of her Fifth Amendment right not to incriminate herself. The Circuit Court findings that petitioner’s “decision not to testify at the hearing cannot properly be construed as an exercise of her Fifth Amendment privilege against self-incrimination” is the law of this case. (Docket No. 89 at 2-3). Petitioner now presents the same issue with a different twist: although the Court did not err, as found by the First Circuit, counsel’s legal assistance in this regard was constitutionally defective under the Sixth Amendment because his intent was to unilaterally safeguard her from incriminating herself, ignorant that the Fifth Amendment was not implicated, against her wishes. Defendant’s silence in the aftermath of counsel’s alleged misrepresentation is notable. On December 9, 1994, when defendant addressed the Court at the beginning of the sentencing healing, upon the Court’s inquiry, petitioner acknowledged being well informed by her attorney as to the Pre-Sentence Investigation Report and as to the fact that she saw no reason to postpone sentencing. (Docket No. 84 at 3). Petitioner also personally addressed the Court in mitigation of sentence as to her repentance, shame, and the impact of her wrongdoing upon her children and parents. (Docket No. 84 at 5-6)." }, { "docid": "17534898", "title": "", "text": "KEARSE, Circuit Judge: Plaintiff pro se Charles Hili, a New York State (“State”) prisoner, appeals from a final judgment of the United States District Court for the Eastern District of New York, Arthur D. Spatt, Judge, dismissing his complaint, brought under 42 U.S.C. § 1983 (1994), against defendants Joseph L. Sciarrotta and Diane Eich, employees of the Department of Probation of Nassau County, New York, for submitting an allegedly inaccurate presentence report to the Nassau County Court in connection with Hili’s conviction in that court. The district court dismissed the action on the ground that State probation officers are entitled to absolute immunity in connection with preparing and furnishing presentence reports. On appeal, Hili contends principally that that immunity does not apply to his claim for injunctive relief. Regardless of the viability of that contention, we affirm on the ground that defendants were entitled to immunity against Hili’s claim for damages and that the complaint failed to state a claim against defendants for injunctive relief. I. BACKGROUND Hili was convicted in Nassau County Court in 1989 of weapons-related offenses. Following receipt of a presentence report (“PSR”), the court sentenced him to a prison term of up to 12 years. In January 1996, Hili brought the present action against probation officer Eich, who prepared the PSR, and Sciarrotta, the director of the probation department, alleging that defendants had violated Hili’s due process and equal protection rights because Eich “did not properly investigate the allegations presented to her and relied knowingly on hersay [sic] and false information in making her report to the court” (complaint at 3, ¶ 12), and because Sciarrotta refused to take corrective action. According to Hili’s complaint, the PSR contained “erroneous and false information” that was “having a detrimental effect on his being considered for parole release, not to mention his classification and status within the Dept [sic] of Corrections.” (Id. at 2, ¶ 6.) The complaint did not identify the allegedly false information; but documents Hili submitted in the district court indicate that he challenged certain statements made by his ex-wife, the intended victim of his offenses." }, { "docid": "6620578", "title": "", "text": "sentence as the primary basis for his amended petition, complaining that there was no such testimony at the trial and that the court could have gotten this information only from the presentence report. Moreover, according to petitioner, the information in the presen-tence report was false because he has never been engaged in drug trafficking. Petitioner’s contention this time with respect to the judge’s reference to the trial testimony is not simply disingenuous; it is plainly wrong. Perez testified on page 961 of the transcript that Camara told him that Morales was killed “because he was ratting to the police.” Thus, the primary basis for the amended petition is in error. Petitioner states in both the amended petition and his memorandum in support thereof: There was no proof at trial that Morales was informing on Arce or anyone else. This allegation appeared only [in] the presentence report. Amended Petition at 2; Memorandum of Law in Support of Amended Petition at 3. The claim is thus stated in the memorandum: Among the false information was the contention that the murder victim had been cooperating with the authorities in a drug investigation of petitioner. This allegation was relied on by the judge at sentencing. He stated that “Morales, according to the testimony at trial, was killed because he allegedly was going to rat to the police.” There, was, however, no proof of this at trial. Nor was there proof that petitioner had ever participated in a drug sale. In fact, the information came from the report. The circumstances show that the information regarding an alleged motive and petitioner’s alleged drug involvement were never presented at trial and subjected to cross-examination, and that petitioner never saw the pre-sentence report and was therefore precluded from rebutting it. This information was never tested in any way for truth or falsity. Indeed, petitioner was not even aware of the existence of this information. Petitioner contends that he has never been involved in drug trafficking and it is undisputed that he had no prior arrests. The judge’s reliance on this false information renders the sentencing violative of due" }, { "docid": "2423976", "title": "", "text": "ten gunmen responsible for over 300 deaths in the New York City Jamaican community. If this second allegation was contained in the presentence report, the sentencing judge may have relied upon it in imposing the maximum sentence on Gayle. Therefore, the district court should not have dismissed Gayle’s current petition as an abuse of the writ based on the face of the sentencing record. The second more devastating allegation, identical to the statement in Gayle’s 1978 prison report, may also have been part of his presentence report, but remained undisclosed at his sentencing. Unfortunately, however, the district court did not determine whether the pre-sentence report contained the second allegation that Gayle subsequently discovered in the 1978 prison report or when he discovered that prison report. In the absence of specific findings on these questions, we simply cannot sanction the district court’s dismissal of Gayle’s third habeas petition as an abuse of the writ. We also reject the state’s contention that the 1978 prison report simply constitutes later discovered evidence of the same claim. Cf McCleskey, 111 S.Ct. at 1472 (“If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim.”). Here, the trial judge repeatedly disclaimed reliance upon the specific allegation in the presentence report which he revealed. Gayle was entitled to rely on these disclaimers. Therefore, until discovering the hidden allegation in the 1978 prison report, Gayle did not have grounds to challenge his sentence. The district court’s order is therefore vacated. On remand, the district court must determine whether Gayle’s presen-tence report contained the allegation contained in the 1978 prison report — that Gayle was part of a Jamaican mafia enforcement association and was one of ten gunmen responsible for the deaths of over 300 individuals in the Jamaican community of New York City. We note for the benefit of the district court on remand that the state conceded during oral" } ]

[ { "docid": "9828638", "title": "", "text": "being addressed by this Court. In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court concluded that a state’s determination that a procedural default foreclosed relief in the state system constituted an adequate and independent state ground for the decision so as to foreclose review of any federal constitutional claims. Accordingly, a federal habeas corpus petitioner who fails to comply with a state’s rules of procedure waives his right to federal habeas corpus review “absent a showing of cause for non-compliance and some showing of actual prejudice resulting from the alleged constitutional violation.” Id. at 84, 97 S.Ct. at 2505. In this case, Gravley has failed to comply with the state of Tennessee’s rules of procedure for preserving his constitutional claim of prosecutorial misconduct. However, we find that his claim can still be addressed by this Court because there was “cause” for the default and a resulting “prejudice” from the omission. The Supreme Court has noted that “cause” under the cause and prejudice test must be something external to the petitioner, something that “cannot fairly be attributed to him.” Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991). Attorney error that amounts to ineffective assistance of counsel can constitute such “cause.” Id. at 753-54, 111 S.Ct. at 2566-67. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set out a two pronged test for establishing ineffective as.sistance of counsel. The Court stated, First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687, 104 S.Ct. at 2064. It is clear that Strickland requires a defendant to show that his trial counsel’s performance was not within a “wide" } ]

[ { "docid": "9944968", "title": "", "text": "for “cause” apply in this case. There was no novel constitutional rule, nor was there a new factual predicate. There was no hindrance by the state court in complying with the procedural rule. Johnson cannot claim ineffective assistance of counsel for his failure to raise the death-eligibility claim in his post-conviction proceedings because he had no right to counsel to pursue his appeal in state post-conviction relief; thus, attorney error at that stage cannot constitute cause. Coleman, 501 U.S. at 752-54, 111 S.Ct. 2546. In short, Johnson’s failure to raise the death-eligibility claim in his first PCR petition can not be excused by attorney error. Finally, Johnson has “fail[ed] to allege the existence of an external impediment” and therefore, cannot establish cause for his procedural default. Moscato, 98 F.3d at 762. III. ACTUAL INNOCENCE/MISCARRIAGE OF JUSTICE In addition to the cause and prejudice standard, a limited exception to procedural default has been recognized where “failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The miscarriage of justice exception, however, applies only to the case where the miscarriage is tied to the petitioner’s actual innocence. Schlup v. Delo, 513 U.S. 298, 321-22, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In those “rare” or “extraordinary” cases, the “truly deserving” may receive relief by allowing “the principles of comity and finality, which animate the procedural default rule” to “yield to the imperative of correcting a fundamentally unjust incarceration.” Schlup v. Delo, 513 U.S. at 319-21, 115 S.Ct. 851. The “prototypical example” of the application of the “actual innocence” exception is where a petitioner is innocent of all criminal wrongdoing, such as where he claims that the government has convicted the wrong person for the crime. See Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Nevertheless, the Court has recognized that the exception can be extended to cases where the defendant claims to be “innocent of the death penalty.” Id. at 340-41, 112 S.Ct. 2514. To qualify for this exception," }, { "docid": "15528980", "title": "", "text": "405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409, 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.” Id. at 410-11, 120 S.Ct. 1495. III. Discussion A. The procedurally defaulted claims. For purposes of judicial clarity, the Court will first address Petitioner’s third, fourth, and fifth claims, because respondent contends that they are procedurally defaulted. When the state courts clearly and expressly rely on a valid state procedural bar, federal habeas review is also barred unless petitioner can demonstrate “cause” for the default and actual prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to consider the claim will result in a “fundamental miscarriage of justice”. Coleman v. Thompson, 501 U.S. 722, 750-751, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). If petitioner fails to show cause for his procedural default, it is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). However, in an extraordinary case, where a constitutional error has probably resulted in the conviction of one who is actually innocent, a federal court may consider the constitutional claims presented even in the absence of a showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-480, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986). To be credible, such a claim of innocence requires a petitioner to support the allegations of constitutional error with new reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Moreover, actual innocence, which would permit collateral review of a procedurally defaulted claim, means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Respondent contends that Petitioner’s third claim" }, { "docid": "15083345", "title": "", "text": "Petitioner that if he failed to plead guilty he could be sentenced to life imprisonment as a fourth habitual offender. With respect to appellate counsel, Lawrence Greene, Petitioner argues that Attorney Greene erred in failing to raise on appeal the claims of ineffective assistance of trial counsel, the illusory nature of Petitioner’s plea agreement, and the trial court’s denial of Petitioner’s motion to withdraw guilty plea. A. Procedural Default As an initial matter, respondent claims that Petitioner’s ineffective assistance of counsel claims are precluded from review in this Court by alleged multiple procedural defaults. The doctrine of procedural default provides: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 750, 111 S.Ct. 2546, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g, to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir.1996). Application of the cause and prejudice test may be excused if a petitioner “presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent.” Rust, 17 F.3d at 162; Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)." }, { "docid": "21127766", "title": "", "text": "Simpson can show “cause and prejudice” for his procedural default, a federal court will reach the merits of his habeas case. See Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998). Even if a petitioner does not show “cause and prejudice,” a federal habeas court will still reach the merits if he can establish that any constitutional error in the jury instructions “has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see.also Bousley, 118 S.Ct. at 1611. The district court did not reach any of these issues in light of its ruling that there was no independent and adequate state ground. The parties have briefed the issues to us and neither party has requested a remand on these points. We address the “actual innocence” test first. a. “Actual innocence” Simpson argues first that the standard applied is one of “fundamental miscarriage of justice,” citing Murray, 4R7 U.S. at 495-496, 106 S.Ct. 2639, and second that any constitutional error in the jury instructions themselves leads to a substantial miscarriage of justice, citing Gagliardi Both arguments mistake the applicable law. On the second point we note that the SJC’s decision on what is a miscarriage of justice is a determination made under state law, see Gibson, 693 F.2d at 17, and does not answer the habeas question under federal law of whether there is actual innocence. It is clear that for habeas purposes the federal “fundamental miscarriage of justice” standard means that petitioner must establish actual innocence. See Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Burks v. Dubois, 55 F.3d 712, 717 (1st Cir.1995). To establish actual innocence, “petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327, 115 5.Ct. 851, cited in Bousley, 118 S.Ct. at 1611; see also Brache v. United States, 165 F.3d 99, 102 (1st Cir.1999). This exception is quite" }, { "docid": "23103119", "title": "", "text": "defendant who has demonstrated actual innocence must nevertheless serve the rest of his sentence— possibly the rest of his life — in prison for a crime he did not commit simply because he cannot persuade a court that he acted with sufficient diligence in raising the issue.” Id. In the context of claims that are defaulted based on state procedural rules, the Supreme Court has held that these claims will not be considered “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (emphasis added) (internal quotation marks and citations omitted). Thus, “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Similarly, in the context of second and successive petitions, the Supreme Court recognized the miscarriage of justice exception to permit a petitioner asserting a claim of actual innocence to avoid a procedural bar without a showing of cause and prejudice. See Schlup v. Delo, 513 U.S. 298, 317-21, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Consistent with this Supreme Court precedent, we have indicated in certain unpublished cases that the actual innocence ground for equitable tolling falls under the fundamental miscarriage of justice exception, while the other reasons for equitable tolling — uncontrollable circumstances preventing a petitioner’s filing, despite his diligent efforts, or the petitioner’s filing of a defective petition, despite his active pursuit of judicial remedies — provide an excusable cause for the failure to timely file. See, e.g., Riley v. Snider, 208 F.3d 227, 2000 WL 231833, at *2 (10th Cir.2000) (considering separately whether the petitioner “diligently pursued his petition or was prevented from doing so by an" }, { "docid": "21868699", "title": "", "text": "absent a showing of cause and prejudice, or a miscarriage of justice. Here, petitioner states that “the state court clearly and expressly relied on untimeliness in rejecting his claim in state court, and therefore denies that the alleged procedural default is independent.” (D.I. 14, at 6.) To the extent this statement is petitioner’s attempt to demonstrate cause, it fails, because it does not show that an external impediment prevented him from presenting this claim in his post-conviction appeal. See Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986). His failure to demonstrate cause obviates the court’s need to address the issue of prejudice. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Further, because petitioner has not alleged that he is actually innocent, or presented any color-able evidence of his actual innocence, he has not demonstrated that a fundamental miscarriage of justice will result from failure to review this claim. Murray, 477 U.S. at 496, 106 S.Ct. 2678 (to establish a miscarriage of justice, a petitioner must show that a “constitutional violation has probably resulted in the conviction of one who is actually innocent”); Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir.2002)(a petitioner establishes actual innocence by proving that no reasonable juror would have voted to find him guilty beyond a reasonable doubt); Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)(actual innocence means factual innocence, not legal insufficiency). Accordingly, federal habeas review of petitioner’s “conflict of interest”/ineffective assistance of counsel claim is unavailable. C. Insufficient evidence Petitioner’s final claim alleges that the evidence introduced at trial was insufficient to convict him of first degree robbery and possession of a firearm during the commission of a felony. Petitioner exhausted state remedies for this claim by presenting it to the Delaware Supreme Court in his direct appeal and in his post-conviction appeal. On direct appeal, the Delaware Supreme Court rejected the claim as meritless. Thus, the court must apply the deferential standard of review provided by § 2254(d)(1) to determine if this claim" }, { "docid": "23080679", "title": "", "text": "default. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Couch, 951 F.2d at 96. A procedural default analysis, then, is two-fold: the federal court must determine if a petitioner failed to comply with a state procedural rule; and it also must analyze whether the state court based its decision on the state procedural rule. A Most of Simpson’s claims were presented in a way that violated MCR 6.508(D). Claims IIIA and IIIB were raised and decided against Simpson in his first motion for relief from judgment and were not directly appealed, thereby violating MCR 6.508(D)(2). Claims II, IIIC, IVB, IVC, IVE, VA, VB, VI, and VII were first raised in Simpson’s second motion for relief from judgment, but could have been raised in his first motion for relief from judgment, thereby violating MCR 6.508(D)(3). A state'prisoner who fails to comply with a state’s procedural rules waives the right to federal habeas review unless the prisoner can demonstrate cause for noncompliance and actual prejudice arising from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Coe, 161 F.3d at 329. Simpson does not assert any reasons to establish cause that would excuse his failure to appeal the partial denial of his first motion for relief from judgment or excuse his failure to present the issues raised in his second motion for relief from judgment in his first motion for relief from judgment. Nor has Simpson demonstrated actual prejudice or that a fundamental miscarriage of justice occurred in this case, since each of Simpson’s substantive claims lack merit. Simpson’s only argument that MCR 6.508(D) should not apply is that issues IV, V, and VI are jurisdictional and therefore meet the exception under MCR 6.508(D)(3) for jurisdictional defects. Simpson claims that jurisdiction refers to “who has authority to do what.” Petitioner’s Brief, at 9. As a result, Simpson claims, issues IV, V, and VI are jurisdictional because the prosecutor and judge did not have the authority to" }, { "docid": "17202071", "title": "", "text": "choice to conserve judicial resources, subverting the values of comity and federalism embraced by Coleman. We note that Sweet’s ineffectiveness claim presents almost a paradigmatic example of a trial record that plainly establishes the basis for an argument that counsel’s performance was deficient and prejudicial. Counsel’s failure to object is preserved in the trial record, and the issue of prejudice is a purely legal question of interpreting New York precedents. We do not see how the defendant’s claim could have benefitted further from separate fact finding in a § 440 hearing. New York is free to adopt a rule allowing defendants with multiple ineffectiveness claims to consolidate them for a § 440 motion, even when some of those claims were sufficiently developed for direct appeal. However, we know of no such rule in New York, and, as we noted above, Sweet chose to bring other ineffective assistance claims on his direct state appeal. Sweet, 652 N.Y.S.2d at 577. C. Actual Innocence The conclusion that Sweet’s claim is procedurally defaulted does not end our analysis. A habeas petitioner may avoid such a default as this by showing cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, ie., the petitioner is actually innocent. See Coleman, 501 U.S. at 748, 111 S.Ct. 2546; Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Aparicio, 269 F.3d at 90. Sweet does not argue cause and prejudice, nor do we see any basis in the record for such an argument. Thus Sweet could only avoid the consequences of his procedural default on this claim if he could show that he is actually innocent. The Supreme Court has explained that the fundamental miscarriage of justice exception is “extremely rare” and should be applied only in “the extraordinary cases.” Schlup v. Delo, 513 U.S. 298, 321-22, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). “ ‘[Actual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). “To establish actual innocence, [a]" }, { "docid": "21088231", "title": "", "text": "court’s decision to deny the habeas petition on the merits. See McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir.1999). Ill We first examine whether the district court erred in holding that Manning’s habeas petition is barred by a procedural default. As a general rule, habeas petitioners must exhaust state court remedies before filing for a writ of habeas corpus under 28 U.S.C. § 2254. See, e.g. Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). However, a procedural default arising from the failure to exhaust may be excused if the petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. A fundamental miscarriage of justice occurs where a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Since Manning does not claim innocence, we examine whether he has asserted “cause” and “prejudice” to excuse his procedural default. A. Cause To allege cause for a procedural default, a petitioner must assert that the procedural default is due to an “objective factor” that is “external” to the petitioner and that “cannot fairly be attributed to him.” Coleman, 501 U.S. at 753, 111 S.Ct. 2546. The courts have recognized several general categories of claims that constitute cause for a procedural default. In Murray, the Supreme Court gave as one example of cause “some interference by officials [that] made compliance [with procedural rules] impracticable.” 477 U.S. at 488, 106 S.Ct. 2639 (citation omitted). In Francis v. Rison, 894 F.2d 353, 355 (9th Cir.1990), we held that prison officials’ interference with a petitioner’s access to administrative remedies can be cause for a procedural default. Constitutionally ineffective assistance of counsel has also been considered cause for a procedural default. See Murray, 477 U.S. at 488, 106 S.Ct. 2639. However, there is no constitutional right to an attorney" }, { "docid": "8945920", "title": "", "text": "F.3d 533, 541 (6th Cir.2001). His appellate counsel was not deficient for failing to raise the proeedurallydefaulted claims as these claims are not clearly stronger than the claims raised by his appellate counsel on direct appeal. Moreover, we have reviewed the substance of Williams’s procedurally defaulted claims and have determined that each of them lacks merit. Thus, he suffered no prejudice from his appellate counsel’s performance. See Buell, 274 F.3d at 352. And because Williams has not established a constitutional violation of his right to counsel, his counsel’s performance cannot serve as “cause” for his procedural defaults. Momo, 281 F.3d at 577. F. “Fundamental Miscarriage of Justice” Gateway The district court properly concluded that Williams cannot escape his procedural defaults by means of the “fundamental miscarriage of justice” gateway. A habeas petitioner can overcome a procedural default by demonstrating that “failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The “fundamental miscarriage of justice” gateway is open to a petitioner who submits new evidence showing that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. The gateway is also available to a petitioner who demonstrates that he is “actually innocent” of the sentence of death that has been imposed on him. To establish his “innocence” of the death penalty, a petitioner must “show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Importantly, a claim of innocence in this context is “not itself a" }, { "docid": "1363864", "title": "", "text": "have denied consideration of the petitioner’s claim on the ground of the state procedural default. Id. Third, to preclude habeas review, the state procedural rule must be an “adequate and independent state ground,” id., that is “firmly established and regularly followed.” Deitz, 391 F.3d at 808 (quoting Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)). A state procedural rule is an independent ground when it does not rely on federal law. Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Further, this inquiry “generally will involve an examination of the legitimate state interests behind the procedural rule in light of the federal interest in considering federal claims.” Maupin, 785 F.2d at 138. If these three factors are satisfied, a petitioner can overcome the procedural default by either “demonstrating] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrating] that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. “Cause” for default requires a showing that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Ineffective assistance of counsel can constitute cause, so long as the ineffective assistance of counsel claim is not itself procedurally defaulted. Id. at 489, 106 S.Ct. 2639. “Prejudice” requires a showing that the errors at trial “worked to [petitioner’s] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Additionally, under the miscarriage-of-justice exception, the Court may consider an otherwise defaulted claim if it concludes that the petitioner has shown that the “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Murray, 477 U.S. at 496, 106 S.Ct. 2639). IV. INEFFECTIVE ASSISTANCE OF COUNSEL" }, { "docid": "16082077", "title": "", "text": "The District Court dismissed the case, finding that the petitioner had procedurally defaulted his claims in state court under MCR 6.508(D)(3) so as to bar federal habeas review. Id. at 991-92. On appeal, the United States Court of Appeals for the Sixth Circuit disagreed, because it refused to apply MCR 6.508(D)(3), which became effective in October of 1989, retroactively. In reaching \"this decision, the Sixth Circuit observed that, because the petitioner’s first motion was merely a request for counsel, his second motion was his only actual motion for relief from judgment. Consequently, the procedural default involved the petitioner’s failure to raise his claims on direct review (in 1965) rather than his failure to raise them in his first motion for relief from judgment (in 1991). Id. at 993, n. 3. The Sixth Circuit held that MCR 6.508(D)(3) was not a firmly established and regularly followed rule of the Michigan courts at the time of the petitioner’s 1965 conviction and thus concluded that MCR 6.508(D)(3) was not an adequate and independent state procedural rule which barred review of the petitioner’s habeas claims. Id. at 993-94. Based upon Rogers, this Court concludes that MCR 6.508(D) was not a regularly followed procedural rule at the time of Petitioner’s 1986 convictions and his direct appeals, which were concluded in 1988. Petitioner is therefore not procedurally barred from bringing his habeas claims in federal court. Further, even if this Court were to find that Petitioner had procedurally defaulted his claims, the Court would not find the default a bar to federal habeas review. A state prisoner who fails to comply with a state’s procedural rules does not waive the right to federal habeas review, if he can show cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or can show that a fundamental miscarriage of justice has occurred. Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir.1996). In this case, Petitioner contends that any procedural default should be excused by the ineffective assistance of appellate counsel. Ineffective assistance" }, { "docid": "15341509", "title": "", "text": "is procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (procedural default occurs when “the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred”); see also O’Sullivan, 526 U.S. at 848, 119 S.Ct. 1728. Federal courts may not'consider the merits of procedurally defaulted claims unless the petitioner establishes “cause and prejudice” or a “fundamental miscarriage of justice” to excuse the default. See Coleman v. Thompson, 501 U.S. at 731, 111 S.Ct. 2546; Lines v. Larkins, 208 F.3d at 160; Werts v. Vaughn, 228 F.3d 178, 192 (3rd Cir.2000). Mattis has not even alleged cause for his default, much less proven it, and therefore we need not consider whether there would be prejudice if we did not consider the claim. Mattis does allege, however, that failure to consider his claim would result in a fundamental miscarriage of justice. The miscarriage of justice exception is quite narrow; it is available only in “extraordinary case[s], where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). To demonstrate that he is actually innocent, a petitioner must show that “it is more likely than not that no reasonable juror would have convicted him ... in light of all the evidence.” Sehlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). This showing requires “new reliable evidence— whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Id. at 324, 115 S.Ct. 851. Although we believe that Mattis’s Brady claim is procedurally defaulted, we must consider the claim to determine whether the fundamental miscarriage of justice exception applies. Further, in an abundance of caution we will review the Brady claim on the merits. In doing so, we find that there was no Brady violation, so there is no constitutional" }, { "docid": "16831460", "title": "", "text": "level of constitutional error. It was neither excessive nor persistent. Additionally, the trial court informed the jurors that the attorneys’ questions, statements, and arguments were not evidence. See TT III at 161. Given the overwhelming evidence against petitioner, the court concludes that the jurors must have been swayed by the facts and not the prosecutor’s conduct. Robison, 829 F.2d at 1509. Accordingly, petitioner has not satisfied the prejudice prong for ineffective assistance of counsel and, therefore, he has not established cause for his state procedural default. For similar reasons, petitioner has not shown that the alleged prosecutorial misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). Therefore, petitioner also has not established prejudice for purposes of state procedural default analysis. 4. Miscarriage of Justice The remaining question is whether this court’s failure to consider petitioner’s fifth claim on the merits will result in a miscarriage of justice. The exception for miscarriages of justice requires showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995); Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. 2639. “ ‘[Ajctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. U.S., 523 U.S. 614, -, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998). “To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. Petitioner has not presented any new reliable evidence demonstrating that he is innocent. Therefore, a miscarriage of justice will not occur if the court declines to review petitioner’s fifth claim on the merits. Petitioner’s state procedural default bars habeas review of his fifth claim. H. Claim VI — Use of Inaccurate Information at Sentencing Petitioner’s sixth" }, { "docid": "17202072", "title": "", "text": "habeas petitioner may avoid such a default as this by showing cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, ie., the petitioner is actually innocent. See Coleman, 501 U.S. at 748, 111 S.Ct. 2546; Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Aparicio, 269 F.3d at 90. Sweet does not argue cause and prejudice, nor do we see any basis in the record for such an argument. Thus Sweet could only avoid the consequences of his procedural default on this claim if he could show that he is actually innocent. The Supreme Court has explained that the fundamental miscarriage of justice exception is “extremely rare” and should be applied only in “the extraordinary cases.” Schlup v. Delo, 513 U.S. 298, 321-22, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). “ ‘[Actual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). “To establish actual innocence, [a] petitioner must demonstrate that, ‘in light of all the evidence,’ ‘it is more likely than not that no reasonable juror would have convicted him.’ ” Id. (citing Schlup, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (some internal citation marks omitted)). Although Sweet did not explicitly make an actual innocence claim, he arguably raised this issue as part of his ineffectiveness claim. For example, Sweet argued that: [He] was charged with second degree murder, a crime that requires a finding beyond a reasonable doubt that he acted recklessly. He was also charged with first degree manslaughter, a charge that requires he act intentionally. The language in the indictment is identical: that his act was applying blunt force trauma to Nina, the result was the laceration of liver and spleen and, subsequently, death.... It is as though he were charged with driving his car into a telephone pole negligently and intentionally at the same time. He just can’t. Appellant’s Br. at 8-9. Under this theory, Sweet had to be “actually innocent” of one of" }, { "docid": "16082078", "title": "", "text": "review of the petitioner’s habeas claims. Id. at 993-94. Based upon Rogers, this Court concludes that MCR 6.508(D) was not a regularly followed procedural rule at the time of Petitioner’s 1986 convictions and his direct appeals, which were concluded in 1988. Petitioner is therefore not procedurally barred from bringing his habeas claims in federal court. Further, even if this Court were to find that Petitioner had procedurally defaulted his claims, the Court would not find the default a bar to federal habeas review. A state prisoner who fails to comply with a state’s procedural rules does not waive the right to federal habeas review, if he can show cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or can show that a fundamental miscarriage of justice has occurred. Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir.1996). In this case, Petitioner contends that any procedural default should be excused by the ineffective assistance of appellate counsel. Ineffective assistance of counsel may constitute cause for procedural default. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Ratliff v. United States, 999 F.2d 1023, 1026 (6th Cir.1993) (ineffective assistance of counsel constitutes cause under cause and prejudice standard for reviewing claims first presented in post-conviction proceedings). As discussed more fully below, Petitioner has shown that appellate counsel was ineffective for failing to present his habeas claims, particularly those concerning the ineffective assistance of trial counsel, on direct appeal. Petitioner has thus established cause to excuse the failure to raise his habeas claims on direct appeal. Petitioner, has also demonstrated actual prejudice. As discussed in detail below, Petitioner’s ineffective assistance of trial counsel claims are meritorious, as are his ineffective assistance of appellate counsel claims. Moreover, the state courts refused to address several claims contained in Petitioner’s motion for relief from judgment based upon his failure to raise those claims on direct appeal. Additionally, given this Court’s determination, infra, that there was insufficient evidence to support Petitioner’s convictions, Petitioner has shown" }, { "docid": "21868690", "title": "", "text": "297-98, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Although deemed exhausted, such claims are considered procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 749, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Lines, 208 F.3d at 160. A federal habeas court cannot review the merits of procedurally defaulted claims unless the petitioner demonstrates either cause for the procedural default and actual prejudice resulting therefrom, or that a fundamental miscarriage of justice will result if the court does not review the claims. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999); Coleman, 501 U.S. at 750-51, 111 S.Ct. 2546.; Caswell v. Ryan, 953 F.2d 853, 861-62 (3d Cir.1992). To demonstrate cause for a procedural default, the petitioner must show that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). To demonstrate actual prejudice, the petitioner must show “not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494, 106 S.Ct. 2639. Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir.2001). The miscarriage of justice exception applies only in extraordinary cases where a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496, 106 S.Ct. 2639. Actual innocence means factual innocence, not legal insufficiency, Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), and is established if no reasonable juror would have voted to find the petitioner guilty beyond a reasonable doubt. Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir.2002). C. Standard of Review Under AED-PA Once a federal court determines that a claim is exhausted, it must next determine" }, { "docid": "19914205", "title": "", "text": "waiver rule); see also Wooten v. Norris, 578 F.3d 767, 777 (8th Cir.2009) (“A claim is procedurally defaulted if a habeas petitioner failed to raise it in state proceedings.”). The petitioner does not attempt to show that he could revive the defaulted due process claim in the state courts, and we are satisfied that such an effort would be unsuccessful. See Powers v. State, 731 N.W.2d 499, 501 (Minn.2007) (“Matters ... known but not raised in an earlier petition for postconviction relief will generally not be considered in subsequent petitions for postconviction relief.” (citing Spears v. State, 725 N.W.2d 696, 700 (Minn.2006))). The U.S. Supreme Court has established that “federal habeas review of [defaulted] claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Here, the petitioner makes no attempt to show cause for failing to present his federal due process claim to the Minnesota Supreme Court, so he may obtain review of that claim “only if he falls within the ‘narrow class of cases ... implicating a fundamental miscarriage of justice.’ ” Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (ellipsis in original) (quoting McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)); see also Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (“[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”). While the petitioner comes close to arguing that Quantez’s affidavit proves that he is innocent, he does not invoke the miscarriage-of-justice exception or otherwise acknowledge the burden he would face in making a gateway claim of actual innocence. See Schlup, 513 U.S. at" }, { "docid": "14128961", "title": "", "text": "n. 2 (1979), Dixon’s belated argument appears unpersuasive. In any event, because Dixon mounts his challenge to the adequacy of the state procedural bar for the first time in his Reply Brief, we decline to consider his argument. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (citing NLRB v. Star Color Plate Serv., 843 F.2d 1507, 1510 n. 3 (2d Cir.1988)). 3. The “Fundamental Miscarriage of Justice” Exception Dixon contends that even if his challenge to the sufficiency of the evidence was defaulted, this Court should consider and grant his petition under the exception to the procedural bar rule made for fundamental miscarriages of justice. In Coleman, the Supreme Court explained that [i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. 501 U.S. at 750 (emphasis added). In the event of a fundamental miscarriage of justice, “where a constitutional violation has probably resulted in the conviction of one who is actually innocent,” the Court has recognized that “a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Carrier, 477 U.S. at 496, 106 S.Ct. 2639. “To establish actual innocence, petitioner must demonstrate that ‘in light of all the evidence,’ ‘it is more likely than not that no reasonable juror would have convicted him.’ ” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)) (further citation omitted). “ ‘[AJctual innocence’ means factual innocence, not mere legal insufficiency.” Id. at 623-24, 118 S.Ct. 1604 (citation omitted); see also Triestman v. United States, 124 F.3d 361, 363 (2d Cir.1997) (“[Sjerious constitutional questions would arise if" }, { "docid": "14128962", "title": "", "text": "to consider the claims will result in a fundamental miscarriage of justice. 501 U.S. at 750 (emphasis added). In the event of a fundamental miscarriage of justice, “where a constitutional violation has probably resulted in the conviction of one who is actually innocent,” the Court has recognized that “a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Carrier, 477 U.S. at 496, 106 S.Ct. 2639. “To establish actual innocence, petitioner must demonstrate that ‘in light of all the evidence,’ ‘it is more likely than not that no reasonable juror would have convicted him.’ ” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)) (further citation omitted). “ ‘[AJctual innocence’ means factual innocence, not mere legal insufficiency.” Id. at 623-24, 118 S.Ct. 1604 (citation omitted); see also Triestman v. United States, 124 F.3d 361, 363 (2d Cir.1997) (“[Sjerious constitutional questions would arise if a person who can prove his actual innocence on the existing record — and who could not have effectively raised his claim of innocence at an earlier time — had no access to judicial review.”). Dixon argues that, in spite of his procedural default, he merits habeas relief on the grounds that he is factually innocent of first degree possession of a controlled substance because there was insufficient evidence that he knew the weight of the drugs he possessed and, due to the earlier misunderstanding of the law, the element of knowledge of weight was never proved beyond a reasonable doubt at his trial in violation of the Constitutional requirements set out in Jackson, 443 U.S. at 316, 99 S.Ct. 2781 and In re Winship, 397 U.S. at 364, 90 S.Ct. 1068. The Government responds that the evidence at Dixon’s trial was sufficient to prove that he knew the weight of the heroin and therefore he cannot make the threshold showing of “actual innocence” necessary to invoke the fundamental miscarriage of justice exception to the" } ]

[ { "docid": "3877222", "title": "", "text": "PER CURIAM. Gregory Foster and Reginald Cline brought this product liability action against General Motors Corporation (GMC), claiming they were injured in an accident caused by a design defect in the gearshift of Foster’s Chevrolet automobile. Foster and Cline appeal the jury’s verdict for GMC, contending the district court erroneously admitted two versions of the police accident report. We disagree and affirm. At trial, GMC offered the original police report prepared by the investigating officer. The officer was experienced in motor vehicle accident investigations, he conducted a neutral investigation shortly after the accident occurred, and he prepared his report the next day. This report was clearly admissible under the hearsay exception for public records. Fed.R.Evid. 803(8); Simmons v. Chicago & N.W. Transp. Co., 993 F.2d 1326, 1327-28 (8th Cir.1993). GMC also offered a copy of the police report (the second report) that its investigator received from Foster and Cline’s attorney. The second report was a copy of the original report with alterations in a different handwriting blaming the accident on the au: tomobile’s gearshift. Foster testified the investigating officer gave him the second report and he delivered the report to his attorney. Contrary to Foster and Cline’s argument that the second report lacked the trustworthiness needed for admission under the public records hearsay exception, the second report was not hearsay because GMC did not offer the report to prove its truth. See Fed. R.Evid. 801(c). Instead, GMC offered the second report, and the investigating officer’s testimony denying that he made the alterations, to impeach Foster’s direct testimony that he did not alter the report before giving it to his attorney. Foster and Cline also argue the second report was extrinsic evidence barred for impeachment purposes by Federal Rule of Evidence 608(b). We disagree. Rule 608(b) does not apply to extrinsic evidence that is offered to impeach a witness’s testimony on a material issue. See Boutros v. Canton Regional Transit Auth., 997 F.2d 198, 205 (6th Cir.1993). Thus, the district court properly admitted the second report because the report was relevant to GMC’s defense that Foster and Cline manufactured their claim" } ]

[ { "docid": "18856139", "title": "", "text": "of information known or observable by the police officials themselves. Such evidence was, therefore, within the recognized exception to the hearsay rule and was admissible at trial. Other information contained in the report submitted for the jury’s consideration was not, however, part of any factual finding made through firsthand observation. Rather, the statements of the victim, the alleged assailants, and various witnesses, as well as any statements by the prosecutor regarding reasons for not pursuing criminal charges against certain individuals, contained hearsay information, not facts observed by the preparer of the police report. This court has previously recognized “that factual findings, which are based on inadmissible hearsay, are not admissible under Rule 803(8)(C) because the underlying information is untrustworthy.” Complaint of Paducah Towing Co., Inc. (United States v. Paducah Towing Co., Inc.), 692 F.2d 412, 420-21 (6th Cir.1982). See also Miller v. Caterpillar Tractor Co., 697 F.2d 141, 144 (6th Cir.1983) (court did not abuse discretion in refusing to admit as untrustworthy a document that relied upon hearsay statements of witnesses made to the investigator). Other courts have reached similar conclusions when faced with analogous situations. See cases cited in Complaint of Paducah Towing Co., Inc., 692 F.2d at 421. For example, in Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991), the Second Circuit held: [A statement of a third party] is plainly not admissible merely because contained in a police report. “It is well established that entries in a police report which result from the officer’s own observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not.” United States v. Pazsint, 703 F.2d 420, 424 (9[th] Cir.1983) (emphasis added). Such a result appears eminently reasonable in light of the stated justification for the Rule 803(8)(C) exception to the general prohibition on receipt of hearsay evidence. While a court may presume that a preparer of a report, under a duty to relate information, will perform the task required and formulate justified conclusions and reasonable opinions based on evidence actually observed by the preparer, no such presumption arises" }, { "docid": "23147609", "title": "", "text": "that we can consider only admissible evidence in reviewing an order granting summary judgment.’ ”) (quoting Gross v. Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir.1995)). The nonmoving party does not have to produce evidence in a form that would be admissible at trial, but “ ‘the content or substance of the evidence must be admissible.’ ” Wright-Simmons, 155 F.3d at 1268 (quoting Thomas v. International Business Machines, 48 F.3d 478, 485 (10th Cir.1995)). Hearsay testimony that would be inadmissible at trial cannot be used to defeat a motion for summary judgment because “a third party’s description of a witness’ supposed testimony is ‘not suitable grist for the summary judgment mill.’ ” Wright-Simmons, 155 F.3d at 1268 (quoting Thomas, 48 F.3d at 485). In this case, in order for Plaintiffs to prevail, Plaintiffs must make a showing that American Guarantee’s E & O policy provides coverage for Gregory’s acts or omissions • that led to Plaintiffs’ financial losses. The American Guarantee policy was effective from May 1, 1996 to January 1, 1997. See Aplt.App. at 2-09 (certificate of insurance). Section III of American Guarantee’s policy reads, in pertinent part: III. TERRITORY AND CLAIMS-MADE PROVISIONS This Policy applies to acts, errors, omissions or PERSONAL INJURIES which occur anywhere in the world provided that CLAIM is made against the INSURED in the United States of America, its territories or possessions and provided further that such acts, errors, omissions or PERSONAL INJURIES occurred: A. During the POLICY PERIOD, and then, only if CLAIM is first made against the INSURED during the POLICY PERIOD and is reported to the Company, in writing, during the POLICY PERIOD.... B. Prior to the effective date of this Policy, provided that: 3. CLAIM is first made against the NAMED INSURED during the POLICY PERIOD and is reported to the Company, in writing, during the POLICY PERIOD ... and, 4. the acts, errors, omissions or PERSONAL INJURY occurred after the retroactive date indicated on the Declarations page. See Aplt.App. at 2-12 to 2-13. American Guarantee is obligated to provide E & 0 coverage under the plain language of" }, { "docid": "23015310", "title": "", "text": "do. See 2 Kenneth S. Broun et al., McCormick on Evidence § 246, at 129 (6th ed. 2006) (“For example, witness W reports on the stand that declarant D has stated that X was driving at a given time and place. The proponent is trying with this evidence to prove that X did so act. The out-of-court assertion is being offered to prove the truth of the matter asserted, and by definition, it is hearsay.”). 3 Finally, Ms. Johnson urges us to consider Mr. Bogota’s, Ms. Burns’s, and Mr. Willoughby’s statements because they could be replaced at trial by admissible evidence, namely their live testimony. This we cannot do. When a proper hearsay objection has been made and preserved, “[i]t is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment.” Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir.1998) (quoting Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir.1995)); see also Montes, 497 F.3d at 1176 (“Under our precedents, we are constrained to disregard such hearsay on summary judgment when, as here, there is a proper objection to its use and the proponent of the testimony can direct us to no applicable exception to the hearsay rule.”). Seeking to avoid this result, Ms. Johnson relies on language in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), in which the Supreme Court indicated that “[w]e do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.” Id. at 324, 106 S.Ct. 2548. This, Ms. Johnson argues, permits consideration of hearsay evidence at summary judgment if its proponent could later re place it with the declarant’s testimony at trial. We long ago rejected just this argument as a misreading of Celotex. In Thomas v. IBM, 48 F.3d 478 (10th Cir.1995), we explained that, while Celotex indicates that the form of evidence produced by a nonmoving party at summary judgment may not need to be admissible at trial," }, { "docid": "22331008", "title": "", "text": "stabbing. Defense counsel attempted to offer this exhibit into evidence either: (1) as substantive evidence, to prove the truth of Whitehead’s statements, or (2) as a tool to impeach Whitehead’s in-court testimony. The court refused to admit the exhibit on the grounds that it was an investigative report, rather than a business record kept in the normal course of business, and therefore did not fall within an exception to the hearsay rule. The court also noted that the relevancy of the report appeared questionable. Federal Rule of Evidence 803(6) provides that records kept in the normal course of business constitute an exception to the hearsay rule. Relying on the pretrial stipulation, which stated that Exhibit 1 was in fact a business record, Saunders sought to introduce the report pursuant to Rule 803(6). The government succeeded in having the report excluded, however, by arguing “that although entries in a police or investigating officer’s report which result from the officer’s own observations and knowledge may be admitted [under Rule 803(6)], statements made to the officer by third parties under no business duty to report may not.” United States v. Snyder, 787 F.2d 1429, 1434 (10th Cir.1986) (Holding that statements attributed to inmates in written report of investigating officer as to another inmate’s connection with a weapon seized in a federal prison was inadmissible under Rule 803(6)). We agree that, in the absence of the stipulation, the report would not have been admissible under Rule 803(6). See United States v. Pazsint, 703 F.2d 420, 424 (9th Cir.1983); Meder v. Everest & Jennings, Inc., 637 F.2d 1182, 1186-87 (8th Cir.1981); United States v. Yates, 553 F.2d 518, 521 (6th Cir.1977); United States v. Smith, 521 F.2d 957, 964 (D.C.Cir.1975). The existence of the stipulation, however, leads us to conclude that the document should have been admitted. The defense attorney, who both tried the case and argued it on appeal, stated to this panel that when he entered into the stipulation, he sincerely believed that the government was conceding the admissibility of this report. In reading the stipulation, we can certainly understand how defense counsel" }, { "docid": "23147608", "title": "", "text": "the ultimate burden of persuasion at trial, however, it does not have to negate the nonmovant’s claim, but may meet its- burden by “pointing out to the court a lack of evidence for the non-movant on an essential element of the nonmovant’s claim.” Id. at 671. Once the movant meets its initial burden, the non-movant “must do more than refer to allegations of counsel contained in a brief to withstand summary judgment. Rather, sufficient evidence (pertinent to the material issue) must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein.” Thomas v. Wichita. Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.1992). Evidence is sufficient to withstand summary judgment if it is significantly probative and would enable a trier of fact to find in the nonmovant’s favor. In order to survive summary judgment, the- content of the evidence that the nonmoving party points to must be admissible. See Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir.1998) (“ ‘It is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment.’ ”) (quoting Gross v. Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir.1995)). The nonmoving party does not have to produce evidence in a form that would be admissible at trial, but “ ‘the content or substance of the evidence must be admissible.’ ” Wright-Simmons, 155 F.3d at 1268 (quoting Thomas v. International Business Machines, 48 F.3d 478, 485 (10th Cir.1995)). Hearsay testimony that would be inadmissible at trial cannot be used to defeat a motion for summary judgment because “a third party’s description of a witness’ supposed testimony is ‘not suitable grist for the summary judgment mill.’ ” Wright-Simmons, 155 F.3d at 1268 (quoting Thomas, 48 F.3d at 485). In this case, in order for Plaintiffs to prevail, Plaintiffs must make a showing that American Guarantee’s E & O policy provides coverage for Gregory’s acts or omissions • that led to Plaintiffs’ financial losses. The American Guarantee policy was effective from May 1, 1996 to January 1, 1997. See Aplt.App." }, { "docid": "23590956", "title": "", "text": "record within the meaning of Rule 803(6), Belsky’s statement does not satisfy the rule’s requirements because there was no showing that he had a duty to report the information he was quoted as having given. See United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir.1988) (holding exhibit summarizing surveillance activity was admissible because there was no evidence report “improperly incorporated the statements of third persons under no business duty to report”); United States v. Snyder, 787 F.2d 1429, 1434 (10th Cir.) (affirming exclusion of report because it contained statements of those with no business duty to report), cert. denied, 479 U.S. 836, 107 S.Ct. 134, 93 L.Ed.2d 78 (1986); United States v. Pazsint, 703 F.2d 420, 424 (9th Cir.1983) (holding tapes of emergency calls were erroneously admitted because the callers were under no business duty to report); Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir.1981) (hearsay statements within business records are admissible only if the person providing the information had a “duty of accuracy”), cert. denied, 456 U.S. 927, 102 S.Ct. 1974, 72 L.Ed.2d 443 (1982); United States v. Yates, 553 F.2d 518, 521 (6th Cir.1977) (finding part of letter not within business record exception because it contained statement outside the scope of business). Cf. Johnson v. Lutz, 253 N.Y. 124, 127-28, 170 N.E. 517 (1930) (police officer’s accident report, although prepared in ordinary course of business, was inadmissible because it contained statement of bystander who had no duty to report information). The admissibility of Belsky’s statement within the exception for reports of public agencies or the catch-all exceptions depends on its “trustworthiness.” Judge Mu-kasey did not abuse his discretion when ruling that there was insufficient evidence of the statement’s reliability to provide the requisite circumstantial guarantees of trustworthiness. Not only did Belsky have no duty to report the date on which the goods were delivered, there was no evidence that, as an accountant, he would have had personal knowledge of the date on which the coats were delivered. In addition, the statement was supported only by the testimony of Braz and contradicted by the" }, { "docid": "23211916", "title": "", "text": "to the Plaintiff! ] the burden of producing evidence supporting jurisdiction.” Posner, 178 F.3d at 1215. UTC attempted to respond and establish jurisdiction by means of Mazer’s purported statements about APM and Loetschert contained in the Dunphy Report, but the district court found these statements to be inadmissable hearsay and declined to consider them. In so deciding, the district court did not abuse its discretion. See United States v. Brown, 441 F.3d 1330, 1359 (11th Cir.2006) (“We review a district court’s hearsay ruling for abuse of discretion.”). UTC argues that Mazer’s statements in the Dunphy Report should have been considered under the exceptions to the rule against hearsay for (1) records of regularly conducted business activity, and (2) public records and reports. Fed. R.Evid. 803(6), (8). For the exceptions to apply, the report must contain “factual findings” that are “based upon the knowledge or observations of the preparer of the report,” as opposed to a mere collection of statements from a witness. Miller v. Field, 35 F.3d 1088, 1091 (6th Cir.1994). “It is well established that entries in a police report which result from the officer’s own observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not.” United States v. Paz-sint, 703 F.2d 420, 424 (9th Cir.1983) (finding Rule 803(6) inapplicable); see also Miller, 35 F.3d at 1091 (finding Rule 803(8) inapplicable); Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991) (same). In other words, “[p]lacing otherwise inadmissible hearsay statements by third-parties into a government report does not make the statements admissible.” Commodity Futures Trading Comm’n v. Wilshire Inv. Mgmt. Corp., 407 F.Supp.2d 1304, 1315 n. 2 (S.D.Fla.2005), aff'd in part, vacated in part on other grounds, 531 F.3d 1339 (11th Cir.2008). Here, while we need not decide whether the Dunphy Report itself is subject to the asserted exceptions, the pertinent point is that we can say with confidence that Rules 803(6) and (8) cannot render admissible Mazer’s hearsay statements contained within the report. See Fed.R.Evid. 805. “Hearsay within hearsay subject to an exception is not admissible.” Joseph" }, { "docid": "23041417", "title": "", "text": "any possible prejudice, and subsequently cautioned the jury not to give any weight to noises on the tapes other than the voices of the caller and the answering officer. The recordings should not have been admitted under the business records exception to the hearsay rule. That exception applies only if the person furnishing the information to be recorded is “acting routinely, under a duty of accuracy, with employer reliance on the result, or in short ‘in the regular course of business.’ ” Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1974, 72 L.Ed.2d 443 (1982); Advisory Committee Note to Fed.R.Evid. 803(6). It is well established that entries in a police report which result from the officer’s own observations and knowledge may be admitted but that statements made by third persons under no business duty to «report may not. United States v. Sims, 617 F.2d 1371,. 1377 (9th Cir.1980); United States v. Smith, 521 F.2d 957, 964 (D.C.Cir.1975); Colvin v. United States, 479 F.2d 998, 1003 (9th Cir. 1973). Here the police officer who made the recordings was acting in the regular course of business, but he had no knowledge of the truthfulness of the information being recorded, while the witnesses who gave the information which was recorded had personal knowledge but were under no business duty to report. The latter’s tape-recorded statements can not be given the presumption of reliability and regularity accorded a business record. See United States v. Smith, 521 F.2d at 964; Advisory Committee Note to Fed.R.Evid. 803(6). Therefore, while the direct testimony of the witnesses was admissible at trial, the tapes were not. We conclude that the district court erred in allowing them to be played. Our disposition of this case, however, makes it unnecessary to determine whether, standing alone, such an error would require reversal under the test summarized in United States v. Hollingshead, 672 F.2d 751, 755 (9th Cir.1982). Pazsint also contends that various other errors were made before and at trial. However, it is not necessary to discuss these contentions as they" }, { "docid": "23015309", "title": "", "text": "a party opponent.” Id. 2 Ms. Johnson separately contends that Mr. Bogota’s, Ms. Burns’s, and Mr. Willoughby’s statements aren’t hearsay because they are not “offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). That is, Ms. Johnson contends that their statements aren’t offered “to prove the truth of what Speck-man said — only that he said it.” Opening Br. at 46 (emphasis omitted). This won’t solve the hearsay problem either. Even assuming without deciding that the mere fact Mr. Speckman made his comments is relevant to Ms. Johnson’s case, the only way Ms. Johnson can prove the fact of Mr. Speckman’s comments is through Mr. Bogota’s, Ms. Burns’s, and Mr. Willoughby’s out-of-court hearsay statements to her. It is the same as though Ms. Johnson had testified that Mr. Bogota, Ms. Burns, and Mr. Willoughby each told her that Mr. Speckman had driven through town at noon. Even if Mr. Speckman's actions (driving through town or speaking as a party-opponent) don’t themselves raise a hearsay problem, the out-of-court statements describing them still do. See 2 Kenneth S. Broun et al., McCormick on Evidence § 246, at 129 (6th ed. 2006) (“For example, witness W reports on the stand that declarant D has stated that X was driving at a given time and place. The proponent is trying with this evidence to prove that X did so act. The out-of-court assertion is being offered to prove the truth of the matter asserted, and by definition, it is hearsay.”). 3 Finally, Ms. Johnson urges us to consider Mr. Bogota’s, Ms. Burns’s, and Mr. Willoughby’s statements because they could be replaced at trial by admissible evidence, namely their live testimony. This we cannot do. When a proper hearsay objection has been made and preserved, “[i]t is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment.” Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir.1998) (quoting Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir.1995)); see also Montes, 497 F.3d at 1176 (“Under our precedents, we" }, { "docid": "1847827", "title": "", "text": "who lacks decisionmaking power, influences the unbiased decisionmaker to make an adverse hiring decision, thereby hiding the subordinate's discriminatory intent. EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir.2006),; see also Arendale v. City of Memphis, 519 F.3d 587, 604 n. 13 (6th Cir.2008) (\"When an adverse hiring decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias, this Court has held that the employer may be held liable under a rubber-stamp’ or 'cat’s paw’ theory of liability.”). . Federal Rule of Evidence 803, Hearsay Exceptions, states that \"[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness: (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” . Federal Rule of Evidence 803(6) identifies one of the exceptions to the general hearsay prohibition: Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, ... unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term ''business” as used in this paragraph includes" }, { "docid": "176284", "title": "", "text": "the party opposing summary judgment “need not produce evidence in a form that would be admissible at trial, ... the content or substance of the evidence must be admissible.” Thomas v. IBM, 48 F.3d 478, 485 (10th Cir.1995) (citations and internal quotation marks omitted). Hearsay testimony cannot be considered because a third party’s description of a witness’ supposed testimony is “not suitable grist for the summary judgment mill.” Id. (citations and internal quotation marks omitted). We review a district court’s evidentiary rulings for abuse of discretion. See United States v. Davis, 40 F.3d 1069, 1076 (10th Cir.1994). In this ease, the district court’s opinion does not address the admissibility of the report or the attached interview notes for the purpose of the summary judgment inquiry. As we explain below, that evidence is not hearsay. Thus, even if the district court ruled on the summary judgment motion without considering the report and attached notes, that decision to exclude the evidence would itself constitute an abuse of discretion requiring reversal and consideration of the report and interview notes. Under Rule 801(d)(2)(B), evidence is not hearsay if it “is offered against a party and is ... a statement of which the party has manifested an adoption or belief in its truth.” The First Circuit recently applied 801(d)(2)(B) to a report similar to the one at issue here. In Pilgrim v. Trustees of Tufts College, 118 F.3d 864 (1st Cir.1997), the plaintiff, an employee of the college, filed a grievance against his supervisor, alleging discrimination on the basis of race and national origin. A grievance committee investigated the allegations, prepared a report favorable to the plaintiff, and submitted the report to the president of the college. The president implemented each of the report’s recommendations, including the removal of the plaintiffs supervisor from all supervisory duties. See id. at 870. The Pilgrim court explained that when determining whether a party has manifested a belief in the truth of a document, the test is “whether the surrounding circumstances tie the possessor and the document together in some meaningful way.” Id. (citations and internal quotation marks omitted)." }, { "docid": "23211917", "title": "", "text": "that entries in a police report which result from the officer’s own observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not.” United States v. Paz-sint, 703 F.2d 420, 424 (9th Cir.1983) (finding Rule 803(6) inapplicable); see also Miller, 35 F.3d at 1091 (finding Rule 803(8) inapplicable); Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991) (same). In other words, “[p]lacing otherwise inadmissible hearsay statements by third-parties into a government report does not make the statements admissible.” Commodity Futures Trading Comm’n v. Wilshire Inv. Mgmt. Corp., 407 F.Supp.2d 1304, 1315 n. 2 (S.D.Fla.2005), aff'd in part, vacated in part on other grounds, 531 F.3d 1339 (11th Cir.2008). Here, while we need not decide whether the Dunphy Report itself is subject to the asserted exceptions, the pertinent point is that we can say with confidence that Rules 803(6) and (8) cannot render admissible Mazer’s hearsay statements contained within the report. See Fed.R.Evid. 805. “Hearsay within hearsay subject to an exception is not admissible.” Joseph v. Kimple, 343 F.Supp.2d 1196, 1204 (S.D.Ga.2004). Therefore, UTC cannot rely on Mazer’s purported statements in the Dunphy Report to establish jurisdiction in opposition to the Loetschert affidavit unless those statements themselves are subject to a hearsay exception. UTC suggests that Mazer’s statements in the Dunphy Report could be viewed as non-hearsay admissions because Mazer is a director and part owner of APM. Federal Rule of Evidence 801(d)(2) provides that a statement is not hearsay if: The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a cocon-spirator of a party during the course and" }, { "docid": "18856140", "title": "", "text": "Other courts have reached similar conclusions when faced with analogous situations. See cases cited in Complaint of Paducah Towing Co., Inc., 692 F.2d at 421. For example, in Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991), the Second Circuit held: [A statement of a third party] is plainly not admissible merely because contained in a police report. “It is well established that entries in a police report which result from the officer’s own observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not.” United States v. Pazsint, 703 F.2d 420, 424 (9[th] Cir.1983) (emphasis added). Such a result appears eminently reasonable in light of the stated justification for the Rule 803(8)(C) exception to the general prohibition on receipt of hearsay evidence. While a court may presume that a preparer of a report, under a duty to relate information, will perform the task required and formulate justified conclusions and reasonable opinions based on evidence actually observed by the preparer, no such presumption arises when the preparer relies on potentially untrustworthy hearsay evidence from another individual under no duty to provide unbiased information. The bulk of the Michigan State Police reports introduced as evidence at trial contains neither factual findings made by the report’s preparers nor conclusions and opinions based upon such factual findings. Instead, the reports are largely a recitation of statements of other individuals that fall under no other exception to the hearsay rule. Because those statements of the victim, the alleged assailants, other witnesses, and the local prosecutor are, therefore, hearsay within hearsay, that evidence should not have been placed before the jury in this case. Nor does the ruling in Roland II furnish a basis for permitting introduction of the police reports at issue here. The central dispute in the Roland case was not whether certain injuries to the plaintiff had actually occurred, but “whether the defendants were deliberately indifferent to his safety” and, therefore, liable for those injuries. Roland v. Johnson, 856 F.2d at 769. In order to establish “deliberate indifference,” a § 1983" }, { "docid": "22173146", "title": "", "text": "anyone talked to Patty Gross about this dumb cunt remark? A. No. Q. Did you ever directly hear George Anderson call Patty a dumb cunt? A. Not that I recall, no. (emphasis added). It is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment. Thomas v. IBM, 48 F.3d 478, 485 (10th Cir.1995); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.), cert. denied, 474 U.S. 823, 106 S.Ct. 77, 88 L.Ed.2d 63 (1985). Hearsay testimony cannot be considered because “[a] third party’s description of [a witness’] supposed testimony is not suitable grist for the summary judgment mill.” Thomas, 48 F.3d at 485 (citations omitted). Answers to interrogatories must meet the requirement of Rule 56(e) that evidence offered in opposition to a motion for summary judgment must be “ ‘made on personal knowledge ... set forth such facts as would be admissible in evidence, and ... show affirmatively that the [person who responded to the interrogatories] is competent to testify to the matters’ set forth therein.” H.B. Zachry Co. v. O’Brien, 378 F.2d 423, 425 (10th Cir.1967) (citation omitted); accord, Garside v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir.1990) (answers to interrogatories should be accorded no probative force if they are not based upon personal knowledge or are otherwise deficient). Gross’ response to the interrogatory regarding what Ed Durfee allegedly heard was not based on her personal knowledge of the facts. It was double hearsay. Double hearsay is admissible only “if each part of the combined statements conforms with an exception to the hearsay rule_” Fed.R.Evid. 805; Boren v. Sable, 887 F.2d 1032, 1035 (10th Cir.1989). Gross has not argued that there is an applicable exception to the hearsay rule that would make Durfee’s alleged statement to Gross admissible at trial. Our research has not disclosed any support for such a ruling. Therefore, Durfee’s statement cannot be considered in reviewing the order granting the motions for summary judgment. Thomas, 48 F.3d at 485; World of Sleep, Inc., 756 F.2d at 1474. Guthrie’s deposition" }, { "docid": "8895673", "title": "", "text": "et al., Evidence Practice Under the Rules, supra, § 8.49, at 1008; cf. Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1309-10 (5th Cir.1991) (“[M]any government reports, as with many expert witnesses, have to rely in part on hearsay evidence, and the reports are not generally excluded for this reason.”). It does not suggest that FRE 803(8) removes the hearsay bar for a statement from a nongovernmental third-party contained in a police report. On the contrary, “[p]olice reports have generally been excluded except to the extent to which they incorporate firsthand observations of the officer.” Fed.R.Evid. 803(8) advisory committee’s note. This is because the presumption of reliability that serves as the premise for the public-records exception does not attach to third parties who themselves have no public duty to report. See 4 C.B. Mueller & L.C. Kirkpatrick, Federal Evidence, §§ 8.86, 8.88, at 770-71, 783-84 (3d ed.2007). Accordingly, third-party statements contained in a police report do not become admissible for their truth by virtue of their presence in a public record and instead must have an independent basis for admissibility. See United States v. Wyatt, 437 F.2d 1168, 1170 (7th Cir.1971); see also, e.g., United States v. Taylor, 462 F.3d 1023, 1026 (8th Cir.2006); United States v. Mackey, 117 F.3d 24, 28-29 (1st Cir.1997); Miller v. Field, 35 F.3d 1088, 1091-92 (6th Cir.1994); Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991); United States v. Snyder, 787 F.2d 1429, 1434 (10th Cir.1986); United States v. De Peri, 778 F.2d 963, 976-77 (3d Cir.1985); United States v. Pazsint, 703 F.2d 420, 424-25 (9th Cir.1983); United States v. Smith, 521 F.2d 957, 964-65 (D.C.Cir.1975). So, irrespective of whether the Crash Report is a public record, Binns’s statement contained therein should have been excluded. Much of the Jordans’ argument that Ted’s statement should have been excluded is premised on their incorrect view that Ted’s statement does not qualify as a statement by a party-opponent. Yet they also contend that the Crash Report, as admitted into evidence, does not qualify as a public record under FRE 803(A)(iii) because it does not" }, { "docid": "15349733", "title": "", "text": "the circumstances there is no reason for second guessing. . Every witness, including the troopers, testified Weigel continued to struggle (even after Henderson left the immediate scene) until he stopped breathing. However, a highway patrol investigator interviewed Henderson after the incident. According to the investigator's notes Henderson said Weigel quit struggling before he left to tend to his hands. Assuming the investigator accurately reported Henderson's unsworn statement it cannot be used against Broad and it is insufficient to defeat summary judgment against Henderson. Wright-Simmons v. City of Okla. City, 155 F.3d 1264, 1268 (10th Cir.1998) (\"It is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment.... Hearsay testimony cannot be considered because a third party's description of a witness' supposed testimony is not suitable grist for the summary judgment mill.\") (quotations omitted). The majority claims Henderson's unsworn statement is not hearsay because it constitutes an admission of a party opponent. See Fed. R.Evid. 801(d)(2) (\"A statement is not hearsay if ... [t]he statement is offered against a party and is ... the party's own statement) While technically an admission by Henderson, the statement is little more than impeachment and therefore insufficient to establish a factual dispute.” See McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.1996); Firemen's Fund Ins. Co. v. Thien, 8 F.3d 1307, 1312 (8th Cir.1993). The statement, if considered, is insufficient to defeat summary judgment in favor of Henderson. If, as the Estate argues, the district court concluded, and the majority holds, Henderson’s departure to warm his hands is the defining event with respect to the issue of when Weigel was sufficiently under control to safely warrant moving him, then Henderson can hardly be responsible for unreasonable use of force during his absence. In any event Henderson's statement cannot be used against Broad because it is not Broad’s statement, nor one he adopted, and there is no evidence of a conspiracy or agency relationship. Fed.R.Evid. 801(d)(2); see also Robinson v. Audi Nsu Auto Union Aktiengesellschaft, 739 F.2d 1481, 1487-89 (10th Cir.1984). . The majority relies on Sallenger" }, { "docid": "15349732", "title": "", "text": "force. See, e.g., Jiron v. City of Lakewood, 392 F.3d 410, 418 (10th Cir.2004) (holding officer did not unreasonably create need to shoot armed victim by attempting to coax victim out of the bedroom instead of waiting for backup; \"[h]ad [the officer] left [the victim] in the bedroom, she risked[, inter alia,] the escape of an armed and agitated suspect into the public....”); Medina, 252 F.3d at 1132 (concluding officers did not unreasonably create need to shoot armed victim by following him and attempting to stop him rather than taking cover). \"This approach is simply a specific application of the ‘totality of the circumstances’ approach inherent in the Fourth Amendment's reasonableness standard.” Medina, 252 F.3d at 1132. Here the troopers’ acts were reactive, not provocative. Weigel's unprovoked aggression cannot be excused and must not be minimized. . And it should not matter that Stickley was on Weigel’s legs. Turning Weigel over or allowing him to sit before his feet were tied would change the status quo. Broad's safety assessment must be credited, if reasonable.1 Given the circumstances there is no reason for second guessing. . Every witness, including the troopers, testified Weigel continued to struggle (even after Henderson left the immediate scene) until he stopped breathing. However, a highway patrol investigator interviewed Henderson after the incident. According to the investigator's notes Henderson said Weigel quit struggling before he left to tend to his hands. Assuming the investigator accurately reported Henderson's unsworn statement it cannot be used against Broad and it is insufficient to defeat summary judgment against Henderson. Wright-Simmons v. City of Okla. City, 155 F.3d 1264, 1268 (10th Cir.1998) (\"It is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment.... Hearsay testimony cannot be considered because a third party's description of a witness' supposed testimony is not suitable grist for the summary judgment mill.\") (quotations omitted). The majority claims Henderson's unsworn statement is not hearsay because it constitutes an admission of a party opponent. See Fed. R.Evid. 801(d)(2) (\"A statement is not hearsay if ... [t]he statement is offered" }, { "docid": "5675996", "title": "", "text": "who stated that Clayton was difficult to work with, and fleet manager Shane Habib, who stated he was aware that Clayton had difficulty working with RMS. See Motion ¶ 8, at 47 (citing Filomena Depo. at 35:8-13, 37:2-7). Clayton objects to the \"hearsay statements of Jim Ducker.” Response at 36. To the extent they are offered for the truth of the matters asserted, both Ducker’s and Habib's statements are hearsay, as they are \"statement[s], other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). The Court will therefore consider that Filomena spoke to Ducker and Habib, and that they gave him unfavorable comments about Clayton, but will not consider Ducker’s and Habib’s statements in its Memorandum Opinion and Order for the truth of the matter they asserted. See Gross v. Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir.1995) (\"It is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment. Hearsay testimony cannot be considered because [a] third party’s description of [a witness'] supposed testimony is not suitable grist for the summary judgment mill.” (internal quotations and citations omitted)). . Clayton objects to this asserted fact on the grounds that Clayton only had one conversation with Choquette in which Choquette apologized to Clayton. See Response at 36 (citing Clayton Aff. ¶ 11, at 5). Clayton's affidavit states: I had one telephone conversation with Michelle Choquette who was the Vice-President of Human Resources. Ms. Choquette called me to apologize for the confusion in recruitment ads I was trying to run in the Albuquerque Journal. Classified ads are required to be submitted to the Albuquerque Journal by Thursday at noon and we met that deadline, however, the ad did not appear in the Sunday paper. When I called the Albuquerque Journal, I was informed that Michelle Choquette or someone from the corporate HR Department had called to cancel the ad. Corporate had recently implemented a new centralized recruiting plan. Until then, each market handled its" }, { "docid": "7296391", "title": "", "text": "1033, 1038 (9th Cir.1983) (summary admissible only if underlying documents admissible, voluminous and available for inspection). Although the underlying materials must be “admissible,” they need not be “admitted” in every case. Johnson, 594 F.2d at 1257, n. 6. Exhibit 15 summarized (1) a record of long distance phone calls of various co-conspirators and (2) the surveillance logs of two FBI teams. At the time exhibit 15 was offered, the telephone logs had been admitted and FBI Special Agent Reid Robertson, head of the surveillance team of December 12, 1986 had fully testified. Later in the trial, Special Agent Gunnar Askeland, also a member of the surveillance team, testified and was cross-examined as to the contents of the chart and the matters observed on the day in question. The surveillance logs themselves had also been made available for inspection by the defense but were never formally admitted into evidence. The surveillance reports, though not admitted, were admissible under the business record exception to the hearsay rule. Fed. R.Evid. 803(6). It is established that “entries in a police report which result from the officer’s own observations and knowledge may be admitted, but that statements made by third persons under no business duty to report may not.” United States v. Pazsint, 703 F.2d 420, 424 (9th Cir.1983). The fact that two surveillance teams were operating on December 12, 1986 does not alter the fact that all the officers would have been “acting routinely, under a duty of accuracy, with employer reliance on the result.” Id. (quoting Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1974, 72 L.Ed.2d 443 (1982)). There is no evidence in the record indicating that the surveillance reports improperly incorporated the statements of third persons under no business duty to report. Thus, the Johnson test of underlying admissibility is satisfied in this case. Further, the cross-examination of Agents Robertson and Askeland allowed the defendant to question fully two of the central participants on the surveillance team and thereby alert the jury to any alleged discrepancies in the chart. See" }, { "docid": "176283", "title": "", "text": "Group intended to force her to resign through continual harassment. Hume took several steps to resolve the internal disputes in his office, which he viewed as arising largely from employee confusion over internal policies and procedures. Despite Hume’s efforts, the situation had not improved by the time plaintiff filed the present suit. II. Before determining whether plaintiffs evidence of a hostile work environment and retaliation are sufficient to survive summary judgment, we must first consider whether the two-page report prepared by Berry, and the interview notes attached thereto, are admissible evidence. The City argues that the interview notes attached to Berry’s report are inadmissible hearsay. Plaintiff contends that neither the report nor the notes are hearsay because they are offered against a party and constitute “a statement of which the party has manifested an adoption or belief in its truth.” Fed.R.Evid. 801(d)(2)(B). “It is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment.” Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir.1995). While the party opposing summary judgment “need not produce evidence in a form that would be admissible at trial, ... the content or substance of the evidence must be admissible.” Thomas v. IBM, 48 F.3d 478, 485 (10th Cir.1995) (citations and internal quotation marks omitted). Hearsay testimony cannot be considered because a third party’s description of a witness’ supposed testimony is “not suitable grist for the summary judgment mill.” Id. (citations and internal quotation marks omitted). We review a district court’s evidentiary rulings for abuse of discretion. See United States v. Davis, 40 F.3d 1069, 1076 (10th Cir.1994). In this ease, the district court’s opinion does not address the admissibility of the report or the attached interview notes for the purpose of the summary judgment inquiry. As we explain below, that evidence is not hearsay. Thus, even if the district court ruled on the summary judgment motion without considering the report and attached notes, that decision to exclude the evidence would itself constitute an abuse of discretion requiring reversal and consideration of the report and interview" } ]

[ { "docid": "22265705", "title": "", "text": "of any premium. Explaining this, a witness said: “To make clear thé replies of previous questions I will state that the Equitable Life ‘Assurance Society would decline to purchase for cash a policy during the period for which premiums had been paid, entitling the policy holder to protection for the face value, for the reason that in the'event of the death of the holder of that policy before the expiration of the period for which premiums had been paid, the question would be raised as to' the liability of the company, so that the payment of an amount of cash for the surrender of -a policy is only made by the company after that policy has lapsed by reason of the non-payment upon its due date.” And it was testified. that. the cash surrender values of policies was determined by a. fixed’ and definite method of computation, uniform in all- cases, and had, -without exception, been paid to, persons insured by .the company. It further • appeared that the surrender values of the policies in controversy were ■-as.follows: Policy No.-274445, $5,905.65; policy No. 41767.8, -$2;272.56; policy No. 417171, $6,574.00. It was further testified that the surrender value of each policy was equivalent to the amount of a paid-up policy, which the company was willing to give. Or, as expressed by a witness, “it is equivalent to the percentage reserved under that policy (referring to policy No. 274445), which the company is willing to pay in consideration of the surrender.” The District Court held that the policies had no cash surrender value within the meaning of section 70 of the bankrupt act. The court said: “In the policies in question not only is there a failure to provide for a cash surrender value, but the provisions are inconsistent with the existence of such a value. This, however, is not at war with the fact that the- Assurance Association may be willing to pay money -for the surrender of such policies'. There is no pretence that this custom of the insurer formed a part of the contract between the parties, or that" } ]

[ { "docid": "22338997", "title": "", "text": "and it was held that the insured was entitled to retain the policies upon the payment to the trustee of a süm equivalent to the amount the company was willing to pay- according to its custom, although there was no stipulation in the policies as to a cash surrender value, and upon this subject the court said (p. 212): “What possible difference could it make whether the surrender value was stipulated in a policy or universally recognized by the companies. In either case the purpose of the statute would be subserved, which was to secure to the trustee the sum of such value and to enable the bankrupt to ‘ continue to hold, own and carry such policy free from the claims of the creditors participating in the distribution qf the estate under the bankruptcy proceedings.” And in that case it appeared that this sum.was less than $6,Q00, whereas in a short- time, some six months later, the maturity of one of the policies would give it a value of over $11,000. But this court held that this circumstance made no difference in the right of the insured to pay the surrender value and hold the policy. True it is that life insurance policies are a species of property and might be held to pass under the general terms of subd. 5, § 70a, but a proviso dealing with a class of this property was inserted and must be given its due weight in construing the statute. It is also true .that a proviso may sometimes mean simply additional legisla tion, and not be intended to have the usual and primary office of a proviso which is to limit generalities and exclude from the scope of the statute that which would otherwise be within its terms. This proviso deals with explicitness with the subject of life insurance held by the bankrupt which has a surrender value. Originally life insurance policies were, contracts in consideration of annual sums paid as premiums for the payment of a fixed sum on the death of the insured. It is true that such contracts have" }, { "docid": "5369388", "title": "", "text": "requested that the cash surrender value be paid to her; that her letter, for that reason, constituted, not the acceptance of an option, but the making of an offer to the company; and that, because her death occurred before her offer was accepted by the company, no contract to accept the cash surrender value resulted. The company, on the other hand, contends that the letter of insured and the return of the .policy constituted the acceptance of an option contained in the policy-; that there was a default within the meaning of the policy authorizing insured to exercise the option when the premium was not paid on the date when it became due; and that, as creating a default was a matter within the control of insured, she had the right to exercise the option in advance of the default. In view of these contentions, it becomes important to examine carefully the exact provisions of the policy. On the second page thereof appears a table showing in one column the loan and cash values of the policy for each policy year, and, in another, the paid-up insurance values. Above the loan and cash value column, it is stated: “The loan value is the cash value less interest to the premium anniversary date.” Opposite this table is the provision relating to loans and surrender values, the pertinent provisions of which are as follows: “Provisions Relating to Loans and Surrender Values. “Loans. At any time, while this policy is in full force, after three full years’ premiums have been paid, the Society will advance to the insured (or assignee if any), on proper assignment and delivery of this policy, and on the sole security hereof a sum which, with interest, shall not exceed the cash value at the end of the then current policy year (as stated in the opposite table), less any indebtedness to the Society hereon, provided all premiums or instalments of the same have been fully paid to the end of the then current policy year. * • • “Options on Surrender or Lapse: After three full years’ premiums" }, { "docid": "17949170", "title": "", "text": "BLATCHFORD, District Judge. The petition in this case, a voluntary one. was filed on the lGth of April, 1872. Mrs. Van Antwerp, the mother-in-law of the bankrupt, has proved a debt against his estate, on promissory notes made by him, and held by her, for $4,000, the consideration for which was money loaned by her to him, the amount of the debt proved being $3,450, there having been $550 paid on account of the $4,000. On the 10th of April, 1870, the bankrupt took out a policy of insurance on his own life, in a life insurance company, for $4,000, for the benefit of Mrs. Van Antwerp, payable to her, as collateral security for said debt, and paid the quarter-yearly premiums, $19.84 each, up to the date of his bankruptcy. On the surrender of this policy, the company would, by its terms, issue, in its stead, a paid up policy for $158. At the present age of the bankrupt, it would require the payment now of a single premium of $49.99, to purchase a paid up policy in the company for $158. The cash value of the $4,000 policy, on a surrender of it to the company, is $13.13. The proof of debt sets forth the security. Two questions are certified by the register as arising on the foregoing facts: (1) Whether the assignee in bankruptcy can require Mrs. Van Antwerp either to surrender the policy to him and take a dividend on all her claim, or to retain the policy and withdraw her proof of debt. (2) If such election on her part cannot be required, what shall be taken as the value of the collateral security to be deducted from the debt, so as to arrive at the amount on which Mrs. Van Antwerp is to receive a dividend from the estate? It is contended, on the part of the assignee, that, as the bankrupt took out the policy, and for two years paid the premiums, the as-signee has a claim to whatever .surplus of the amount insured there may be, after paying the debt due Mrs. Van" }, { "docid": "13559995", "title": "", "text": "insured if the beneficiary or assignee shall predecease such person; provided, that, subject to the statute of limitations, the amount of any premiums for said insurance paid with intent to defraud creditors, with interest thereon, shall enure to their benefit from the proceeds of the policy; but the company issuing the policy shall be discharged of all liability thereon by payment of its proceeds in accordance with its terms, unless before such payment the company shall have written notice, by or in behalf of a creditor, of a claim to recover for transfer made or premiums paid with intent to defraud creditors, with specification of the amount claimed.” We have already held that, where the insurance is in force at the time of bankruptcy, this statute exempts the proceeds and avails of such insurance policies from the claims of creditors which arose after the statute took effect. In re Messinger (C. C. A.) 29 F. (2d) 158, 68 A. L. R. 1205. This case differs in that here the policies were surrendered before the petition in bankruptcy was filed. It is not claimed that any premiums were paid on this insurance with intent to defraud creditors. Had there been no surrender before bankruptcy, the trustee could not have reached the cash surrender value. In re Mes-singer, supra. While it is plain that the insured cannot surrender such a policy of insurance as either of those here involved and by receiving the cash value keep so much for his own use despite the claims of his creditors, the statute does provide, so far as now material, that, whore insurance is effected by any person either on his own life or on that of another, and is in favor of a person other than himself, the lawful beneficiary shall be entitled to the proceeds and avails against creditors of the insured. The defendant was the lawful beneficiary named in each policy and did get tho cash surrender value. The checks required her indorsement for payment, and the bankrupt never had the cheeks with her indorsement upon them. To be sure she had" }, { "docid": "22339000", "title": "", "text": "years. For this purpose the estate might or might not have funds, or the payments might be so deferred as to unduly embarrass, the settlement of the estate. Congress recognized also that many policies at the time of bankruptcy might have a very considerable present value which a bankrupt could realize by surrendering his policy to the company. We think it was this latter sum that the act intended to secure to creditors by requiring its pay ment to the trustee as a condition of keeping the policy alive. . In passing this statute Congress intended, while exacting this much, that when that sum was realized to the estate the bankrupt should be permitted to retain the insurance which, because of advancing years or declining health, it might, be impossible for him to replace. It is the twofold purpose of the Bankruptcy Act to convert the estate of the bankrupt into cash and distribute it among creditors and then to give the bankrupt a fresh start with such exemptions and rights as the statute left untouched. In the light of this policy the act must be construed. We think it was the purpose of Congress to pass to the trustee that sum which was available to the bankrupt at the time of bankruptcy as a cash asset, otherwise to leave to the insured the benefit of his life insurance. It should be observed, in this connection, that in the present case the company had advanced upon the policies their full surrender value, as stipulated in the policies, and that the only interest that could have passed to the trustees would have been the speculative right to the net proceeds of the policies, contingent upon the death of the bankrupt and possibly dependent upon the payment of large annual premiums for thirteen years. It is urged, however, that under § 70a, the cash surrender value was to be paid by the bankrupt when ascertained and the policies kept alive for his benefit; and as these policies had been assigned by the beneficiary to McIntyre & Company, not as collateral, but absolutely," }, { "docid": "21669573", "title": "", "text": "representatives, he may, within thirty days after the cash surrender value has been ascertained and stated to the trustee by the company issuing the same, pay or secure to the trustee the sum so. ascertained and stated, and continue to hold, own, and carry such policy free from the claims of the creditors participating in the distribution of his estate under the bankruptcy proceedings, otherwise the policy shall pass to the trustee as assets.” U. S. C. A. Title 11, § 110 (a) (5). “Sec. 6. Exemption of Bankrupts. — a-This Act shall not affect the allowance to. bankrupts of the exemptions which are prescribed by the State laws in force at the time of the filing of the petition in the State wherein they have had their domicile for the six months or the greater portion thereof immediately preceding the filing of the petition.” U. S. C.A. Title 11, §24. “38. Beneficiary of policy; right to proceeds; right of action; premiums paid in fraud of creditors. — When a policy of. insurance is effected by any person on his own life, or on another life in favor of some person other than himself having an insurable interest therein, the lawful beneficiary thereof, other than himself or his legal representatives, shall be entitled to its proceeds, against the creditors and representatives of the person effecting the same; and the person to whom a policy of life insurance is made payable may maintain an action thereon in his own name; provided, that, subject to statute of limitation, the amount of any premiums for said insurance paid in fraud of creditors, with interest thereon, shall inure to their benefit from the proceeds of the policy; but the company issuing the policy shall be discharged of all liability thereon by payment of its proceeds in accordance with its terms, unless, before such payment, the company shall have written notice by or in behalf of some creditor, with specification of the amount claimed, claiming to recover for certain premiums paid in fraud of creditors.” P. L. New Jersey 1902, p. 422. “39. Policies to" }, { "docid": "3158045", "title": "", "text": "insurance and thereafter shall diminish annually at the rate of one dollar per $1,000 of insurance. “12b. Upon request of the Insured, and Assigns if any, made prior to default in premium payment and remaining unrevoked, the premiums thereafter falling due and not paid will be charged as a premium loan with interest at a rate not to exceed six per cent, per annum, pi-ovided the then cash surrender value be sufficient to cover such loan. Any premium loan may be repaid at any time. “12c. Upon default in payment of premuim, unless paid within the grace period, the amount of this Policy and any existing dividend additions, less any indebtedness to the Company on account hereof, shall be extended automatically as non-participating term insurance for such time from the date of default as the then cash surrender value will provide at the net single premium rate for the attained age of the Insured according to the American Experience Table of Mortality with interest at three per cent. “12d. Participating paid-up insurance for such an amount as the then cash surrender value, including any policy loan indebtedness which shall remain as a lien against this Policy, will provide at the net single premium rate for the attained age of the Insured according to the American Experience Table of Mortality with interest at three per cent., may be secured in lieu of automatic extended term insurance upon written request of the Insured, with the Beneficiary and Assigns, if any, made prior to default in premium payment or within the grace period. “12e. Change from automatic extended term insurance to paid-up insurance, or vice versa, may be made in accordance with the respective provisions therefor at any time prior to default in premium payment or within the grace period. “12f. Upon receipt of this Policy and a full and valid surrender of all claims hereunder, without the consent or participation of any beneficiary not ir revocably designated, the Company will pay its then cash surrender value. While this Policy is in full force, including the grace period, the surrender value will be" }, { "docid": "1422526", "title": "", "text": "DAVIS, Circuit Judge. This is an appeal from a decree of tbe District Court awarding the cash surrender value of a certain life insurance policy issued on the life of Calvin C. Hoover to tbe plaintiff, trustee in bankruptcy, and the balance to tbe defendant Robert B. Johnston. The Diamond Drilling & Exploration Company, hereinafter called tbe Diamond Company, was organized under the laws of Delaware in May of 1919 and Calvin C. Hoover was elected its president. On October 27, 1919, the Connecticut General Life Insurance Company issued a policy of insurance on tbe life of Mr. Hoover and made the-Diamond Company the beneficiary without, reservation of right to change the beneficiary. Robert B. Johnston loaned the Diamond-Company, $2,400 on or about March 23,1923, for which as security he received a promissory note for that amount and a diamond drilling bit of tbe same value. This loan was subsequently paid to Mr. Johnston in full and tbe bit and note were returned. On April 1, 1926, at a meeting of the board of directors of tbe Diamond Company, at which Calvin C. Hoover, Bertha B. Hoover, his wife, and A. H. Broadbent, directors, were present, a resolution was passed consenting to the change of the beneficiary on the life of Calvin C. Hoover from the Diamond Company “to such person or persons as the said Calvin C. Hoover shall direct.” Thereafter, in accordance with the directions of Mr. Hoover, the insurance company changed the beneficiary to “Robert B. Johnston, creditor as his interest may appear, the balance, if any, to the executors, administrators or assigns of the insured,” and on May 4, 1926, mailed the policy to him. On April 23,1926, 22 days after they had authorized the change in the beneficiary of the life insurance policy, the directors of the Diamond Company authorized Calvin C. Hoover, who had been president from its incorporation, to file a voluntary petition in bankruptcy for the company. This he did on June 25,1926. All the premiums on this policy were paid By the Diamond Company until the beneficiary was changed. Thereupon they" }, { "docid": "23610564", "title": "", "text": "and by simple declaration. Under such conditions to hold that there was nothing of property to vest in a trustee would be to make an insurance policy a shelter for valuable assets and, it might be, a refuge for fraud. And our conclusions would .be the same if we regarded the proviso alone. “This court has been careful to define the interest of bankrupts in the insurance policies they may possess. In Hiscock v. Mertens, 205 U.S. 202, 27 S.Ct. 488, 51 L.Ed. 771, we gave a bankrupt the benefit of the redemption of a policy from the claims of creditors, though a cash surrender value was not provided by it but was recognized by the insurance company. In Burlingham v. Crouse, 228 U.S. 459, 472, 33 S.Ct. 564, 568, 57 L.Ed. 920, 46 L.R.A.(N.S.) 148, we said that it ‘was the purpose of Congress to pass to the trustee that sum which was available to the bankrupt at the time of bankruptcy as a cash asset; otherwise to leave to the insured the benefit of his life insurance.’ See also Everett v. Judson, 228 U.S. 474, 33 S.Ct. 568, 57 L.Ed. 927, 46 L.R.A.(N.S.) 154.” Cohen v. Samuels, 245 U.S. 50, 52, 53, 38 S.Ct. 36, 37, 62 L.Ed. 143. While constrained to hold that Mrs. Cannon has an interest in these policies not subject to sale for her husband’s taxes, we do not hold that the taxpayer has no interest therein which may not be liable for his taxes. Whether the loan value can be so subjected under 26 U.S.C.A. § 1268a (see 26 U.S.C.A. § 1610 (á, b) or otherwise, leaving to the beneficiary the right to the proceeds upon his death if premiums are paid as provided in the policy, we are not now called upon to decide; nor need we pass upon the question of whether a sale is a proper way to realize upon values in a life insurance policy because the law limits the bidders to those having an insurable interest in the life of the insured. Heusner v. Life Ins. Co., 47" }, { "docid": "22338987", "title": "", "text": "the company would pay to his executors, administrators or assigns the sum of $100,000 in fifty annual instalments or the sum of $53,000 in cash, a total of $106,000 for the two policies. On April 14, 1906, the policies- were assigned absolutely to the firm of T. A. McIntyre & Company, and on April 24, 1907, they were by that firm assigned to the Equitable Society as collateral security for a loan of $15,370. On February 25, 1908, two months prior to the filing of the petition in bankruptcy, the policies were assigned by McIntyre & Company to the defendant, Charles M. Crouse, subject, however, to the prior assignment to the Equitable Society. A. petition in involuntary bankruptcy was filed' against McIntyre & Company and its individual members on April 25, 1908, and on May 9, 1908, the defendant Crouse paid the premiums on the policies, in the sum of $6,078.38. McIntyre & Company and the individual members thereof were adjudged' involuntary bankrupts on May 21, 1908, and the trustees were elected on the twenty-fourth of July, 1908. On the twenty-ninth of July, 1908, Thomas A. McIntyre died, and the policies became payable. It appears that the policies had a cash surrender value, which at the time when the trustees qualified was $15,370, or the amount of the loan of the Equitable Society upon the policies. It is therefore apparent that on the day when the petition was filed, as well as the day of .the adjudication in bankruptcy, the cash surrender value would not have exceeded the loan and lien of the Society upon the policies. The Circuit Court of Appeals for the Second Circuit held that under the circumstances the policies did not pass to the trustees as assets, and therefore the action which had been begun to set aside the transfer to Crouse, as a preference- within the Bankruptcy Act, could not be maintained. The correctness of this decision depends primarily upon the construction of § 70a of the Bankruptcy Act which reads: “The trustee, of the estate of a bankrupt, upon his appointment and qualification, and" }, { "docid": "5369392", "title": "", "text": "cashier. 0 * * “Grace. A grace of thirty-one days, subject to an interest charge at the rate of 5% per annum, will be granted for the payment of every premium after the first, during which period the insurance hereunder shall continue in force. If death occur within the days of grace, the premium for the thén current policy year or any unpaid instalments thereof shall be deducted from the amount payable hereunder. “Except as herein expressly provided, the payment of any premium or instalment thereof shall not maintain this policy in force beyond the date when the succeeding premium or instalment thereof becomes payable.” After a careful examination of these provisions, we think that the company is correct in its contention that, when insured returned the poliey and demanded the cash surrender value thereof on October 10th, she was exercising an option given her under the policy. It is perfectly clear that the poliey contemplates that the cash reserve shall be at all times available to the policyholder, subject to the right of the company to postpone payment thereof for a ninety-day period. Thus during a year for which premiums have been paid in advance, the cash reserve may be borrowed as a loan on the sole security of the poliey, and is to be determined by subtracting from the cash surrender value available at the end of the year interest computed for the intervening time, i. e., “to the premium anniversary date.” After the expiration of the year for which premiums have been paid, the cash reserve may be withdrawn as the surrender value of the policy. The insured is thus given the option when a premium falls due of either paying it and continuing the insurance, or surrendering the policy and taking its cash value. There would be no question as to this being the correct interpretation of the applicable provisions of the poliey but for the provision that allows a grace of thirty-one days in the payment of premiums; and the argument is made that until the lapse of the thirty-one days there is no default," }, { "docid": "23577281", "title": "", "text": "WARD, Circuit Judge. This is a petition to review an order of the-District Court denying the application of the trustee for authority to surrender an ordinary policy of insurance on the bankrupt’s life and collect the surrender value thereof. The policy is dated January 8,. 1889, in the Penn Mutual Life Insurance Company of Philadelphia, described as a trust certificate, whereby the company agrees to pay $5,000 to the wife of the insured, if she survive him, in ten annual payments of $500 each. If she predecease him, the policy is payable to his estate, or to any beneficiaiy named by him. If, after payment of two annual payments, the policy lapses for nonpayment of premiums, the company will, on the decease of the insured, issue a policy of paid-up insurance for a certain amount to the beneficiar3!-. It is provided,, however, that the insured himself may at any time surrender the policy for “paid-up insurance or other value.” The District Judge was of opinion that the wife of the bankrupt was the legal owner of the policy; that it was her property, and, if the insured had the option of' terminating her ownership, he had not exercised it. But we think the policy is the property of the husband, that the contract-is made with him, and that the wife’s interest depends on the contingency of her surviving him. If the property in the policy were absolutely the wife’s, the insurance would be payable upon her death to her estate. Certainly the bankrupt has an interest in the policy. If he survive his wife, the insurance will be payable, not to lier estate, but to him, or to his estate, or to a beneficiary designated by him. This is a vested future interest. Besides this, though not obliged by the contract to do so, the company is willing, apparently, under the option given the insured to surrender the policy for paid-up insurance or other value, to pay the sum of $1,804.23 upon its surrender. The situation is exactly the same as if the policy contained a stipulation for a cash" }, { "docid": "21321172", "title": "", "text": "that it would remain in effect for a grace period of thirty-one days after a premium default. Within sixty-two days of a premium default the insured had the right to choose one of the following substantially identical non-forfeiture options: first, to surrender the policy and, with the written assent of the beneficiary, to receive its cash surrender value; second, to take participating paid-up insurance in the amount which the cash surrender value of the policy would purchase; or third, to take participating extended term insurance for such term as the cash surrender value would purchase. In his insurance applications Wilson elected respectively, the extended term insurance option with regard to the life insurance policy and the paid-up insurance option as to the retirement income policy. The policies provided that in the case of conversion to paid-up or extended term insurance, the policies would continue to have a cash surrender value and that this sum would be obtainable as above, i. e., by surrender of the policy and submission of the written assent of the beneficiary. Each of the policies also contained an identical, optional provision relating to automatic premium loans. On November 21, 1946 Wilson elected under both policies to have this clause become operative in the event of premium default. The automatic premium loan provision read as follows: “Automatic Premium Loan: If the Automatic Premium Loan provision shall have been elected by the insured and proper notice thereof shall have been filed with the Company at its Home Office prior to the expiration of the grace period of any unpaid premium, the Company will, upon the last day of the said grace period and after first applying dividend accumulations to the payment of such premium, automatically loan the amount required to pay such premium, or the unpaid balance thereof, and charge the same as indebtedness against the policy bearing interest at the rate of five per cent, per annum, payable annually, not in advance, provided that the policy be sufficient security for such loan as hereinafter stipulated. If the policy is not sufficient security for such loan, the Company" }, { "docid": "5369389", "title": "", "text": "the policy for each policy year, and, in another, the paid-up insurance values. Above the loan and cash value column, it is stated: “The loan value is the cash value less interest to the premium anniversary date.” Opposite this table is the provision relating to loans and surrender values, the pertinent provisions of which are as follows: “Provisions Relating to Loans and Surrender Values. “Loans. At any time, while this policy is in full force, after three full years’ premiums have been paid, the Society will advance to the insured (or assignee if any), on proper assignment and delivery of this policy, and on the sole security hereof a sum which, with interest, shall not exceed the cash value at the end of the then current policy year (as stated in the opposite table), less any indebtedness to the Society hereon, provided all premiums or instalments of the same have been fully paid to the end of the then current policy year. * • • “Options on Surrender or Lapse: After three full years’ premiums have been paid hereon, upon any subsequent default in the payment of any premium or instalment thereof, and within three months after such default, this policy may be surrendered by the insured (or assignee if any) who may elect either of the following options: “(a) To receive the cash surrender value of this policy; or “(b) To purchase non-participating paid-up life insurance payable at the same time and on the same conditions as this policy, but without total and permanent disability benefits. “In the event of default in the payment of any premium or instalment thereof after this policy has been in force three full years, if the insured (or assignee if any) does not select either of said options within three months of such default, the policy shall become automatically paid-up under option (b). • • * “Basis of Computation. The reserve for which funds are to be held upon this policy shall be computed upon the American ex perience table of mortality with interest at by the net level premium method. “The values" }, { "docid": "2845848", "title": "", "text": "* there shall be secured to the insured without action on his part as specified in the policy, either paid-up insurance or extended insurance or the application of the net value of the policy as a loan in payment of future premiums * * The policy in suit under \"Options on Surrender or Lapse” provides: “(a) To receive the Cash Surrender Value; (b) to purchase non-participating paid-up life insurance * * * (c) continue the insurance for its face amount * *. And if the insured does not exercise either of the options, the company shall without any further action on the part of the insured, apply the cash surrender value to the purchase of paid-up extended term insurance. That was done by the insurer in this case. That provision of the policy brings it within the requirement of the statute insofar as the amount of the cash surrender value is concerned. The policy with respect to annual dividends provides (1) 'paid in cash; (2) applied to the payment of premiums, or (3) applied to the purchase of paid-up additional insurance benefits, or (4) left to accumulate at interest. These provisions certainly comply with the requirements of the Colorado statute as to paid-up insurance or extended insurance. Any provision in the policy complying with either of the three requirements of the statute would be sufficient. The Colorado statute does not aid the plaintiffs in determining how the fund should have been applied. That brings us then to the provisions of the policy itself, which is binding upon the parties. At the time insured notified the insurer to retain all future dividends under Option 4, there was a sufficient amount in the hands of the company to more than pay the premiums which were not paid, resulting in the lapse of the policy. Thereafter some additional amount was added to these accumulated dividends. Insured therefore must have known that there was a sufficient amount of money on deposit with the insurer- to pay the premiums when they became due had he revoked his election of December-5 and elected to receive the" }, { "docid": "3158044", "title": "", "text": "forth in the Aetna Life Insurance Co. case, and the petition must therefore be dismissed. Act of June 14, 1934, c. 512, 48 Stat. 955, as amended August 30, 1935, c. 829, § 405, 49 Stat. 1027, Jud.Code § 274d, 28 U.S.C.A. § 400. The pertinent clauses of the policy are as follows: “12. Non-Forfeiture and Loan Provisions. The following Non-Forfeiture and Loan provisions shall become operative only after payment of premiums for two full years and no request, revocation or change in connection with such provisions shall be effective until duly made in writing and filed at the Home Office of the Company: “12a. The cash surrender value of this Policy at any time prior to default in premium payment or within the grace period, shall be the then reserve on the Policy and any dividend additions then existing, less any indebtedness to the Company on account hereof, and less also a surrender charge which during the fifth or any previous policy year shall be at the rate of ten dollars per $1,000 of insurance and thereafter shall diminish annually at the rate of one dollar per $1,000 of insurance. “12b. Upon request of the Insured, and Assigns if any, made prior to default in premium payment and remaining unrevoked, the premiums thereafter falling due and not paid will be charged as a premium loan with interest at a rate not to exceed six per cent, per annum, pi-ovided the then cash surrender value be sufficient to cover such loan. Any premium loan may be repaid at any time. “12c. Upon default in payment of premuim, unless paid within the grace period, the amount of this Policy and any existing dividend additions, less any indebtedness to the Company on account hereof, shall be extended automatically as non-participating term insurance for such time from the date of default as the then cash surrender value will provide at the net single premium rate for the attained age of the Insured according to the American Experience Table of Mortality with interest at three per cent. “12d. Participating paid-up insurance for such an" }, { "docid": "19382409", "title": "", "text": "Mr. Justice Pitney delivered the opinion of the court. John E.. Schmidt having died pending bankruptcy, his trustee, the present petitioner, sued the Insurance Com- party, respondent, in the Court of Common Pleas of. Allegheny County, Pennsylvania, to recover the proceeds of a .certain policy of life insurance, with interest from the date of death. By an amended statement plaintiff limited his claim to the surrender value of the policy at the time of the adjudication of bankruptcy. The, Court of Common Pleas gave judgment in favor of defendant; on appeal the Superior Court affirmed the judgment (75 Pa. Sup. Ct. Rep. 77); the Supreme Court of the State refused, an appeal,. thereby making the judgment of the Superior-Court final; and a writ of certiorari brings the case here. The facts in brief are as follows: September 20, 1902, the insurance company issued a policy of insurance upon the life of John E. Schmidt in the sum of $1,000, payable upon surrender of the policy properly receipted, after acceptance of proof of death; payment*to be made to his wife, Annie M. Schmidt, or, if he should survive her, then to his administrators, executors or assigns, subject to certain pro visions, one of which was: “The insured, with the written approval of the President or Vice-President, may upon the surrender of this policy, change the beneficiary, or with such approval it, may be assigned.” December 19, 1912, a petition in involuntary bankruptcy was filed against Schmidt; on January 8th following he was duly adjudged á bankrupt; and one month later petitioner was elected and duly qualified as his trustee. The policy was not included in the -schedule of assets, and petitioner had no knowledge of it until after the proceeds had been paid by the insurance company to the widow. , Upon the date of the adjudication of bankruptcy the policy had a cash surreñder value of $322. April 4, 19Í3, the bankrupt died, proof of the fact and cause of his death was duly made and accepted by the company, and May 7,1913, it paid the face of the policy" }, { "docid": "22338986", "title": "", "text": "Mr. Justice.Day delivered the opinion of the court. The action was brought in the United States District Court for the Southern District of New York by the trustees of the firm of T. A. McIntyre & Company, and of the individual members of that firm, bankrupts, against Charles M. Crouse and The Equitable Life Assurance Society of the United States to recover the sum of $90,698.32, the net proceeds of certain policies-of insurance issued by the Equitable Life Assurance Society upon the life of Thomas A. McIntyre, one of the bankrupts, deceased. The proceeds of the policies were paid into court by the Society. The judgment of the District Court in favor of Crouse was affirmed by the Circuit Court of Appeals (181 Fed. Rep. 479), and the case has been appealed to this court. It appears that on the tenth of April, 1902, Thomas A. McIntyre obtained two policies of life insurance in the Equitable Society. They were known as “guaranteed cash-valué, limited payment, life policies,” each providing that upon the death-of the insured the company would pay to his executors, administrators or assigns the sum of $100,000 in fifty annual instalments or the sum of $53,000 in cash, a total of $106,000 for the two policies. On April 14, 1906, the policies- were assigned absolutely to the firm of T. A. McIntyre & Company, and on April 24, 1907, they were by that firm assigned to the Equitable Society as collateral security for a loan of $15,370. On February 25, 1908, two months prior to the filing of the petition in bankruptcy, the policies were assigned by McIntyre & Company to the defendant, Charles M. Crouse, subject, however, to the prior assignment to the Equitable Society. A. petition in involuntary bankruptcy was filed' against McIntyre & Company and its individual members on April 25, 1908, and on May 9, 1908, the defendant Crouse paid the premiums on the policies, in the sum of $6,078.38. McIntyre & Company and the individual members thereof were adjudged' involuntary bankrupts on May 21, 1908, and the trustees were elected on the twenty-fourth" }, { "docid": "23709215", "title": "", "text": "Mr. Justice Brandéis delivered the opinion of the Court. The question for decision is whether the bankrupt or his trustee is the person entitled to future monthly disability benefits payable under a contract entered into- before the adjudication. On March 8, 1934, Legg, a resident of Tennessee, was, on his petition, adjudged a bankrupt. He then held a policy in the Metropolitan Life Insurance Company by which it agreed, in consideration of an annual premium of $425.83, to pay upon his death either $24,000 in 240 monthly installments or the single sum of $17,452, as commuted value. By a supplementary contract issued the same day and attached to the policy, the company, for an annual premium of $49.39, agreed, among other things, to pay a monthly benefit of $174.52, upon due proof that the insured had become totally and permanently disabled before the age of 60. By this provision, if Legg was “pre vented thereby from engaging in any occupation and performing any work for compensation or profit,” the company undertook to: “1. Waive the payment of each premium falling due under said Policy and this Supplementary Contract, and, “2. Pay to the insured, or a person designated by him for the purpose, or if such disability is due to, or is accompanied by, mental incapacity, to the beneficiary of record under said Policy, a monthly income of $10 for each $1,000 of insurance, or of commuted value of instalments, if any, under said Policy.” Legg had become totally and permanently disabled several years before the adjudication. The company had treated its obligation as matured; had waived the payment of premiums on both the policy and the supplementary contract; and, until the adjudication, had paid to him monthly the disability benefits. The bankrupt asked to have the life insurance policy and also the future disability benefits payable under the supplementary contract exempted from the operation of the assignment to the trustee. The latter set aside as exempt the life insurance policy and its cash surrender value, but reported that the obligation of the company to make the benefit payments was" }, { "docid": "2512194", "title": "", "text": "failed to find any evidence that the money received from the insurance company by the bankrupt, was “knowingly and fraudulently concealed by him.” On the contrary, it appears that he had, long before his bankruptcy, borrowed from the insurance company the full amount loanable on liis policies, and this $85.10 was the amount of two partial payments made on account of premiums on April 29, 1907 and on June 5,1907, respectively, when he was given an extension until November 28, 1907, after which, the balance clue not having been paid, the policy lapsed. The policy was a tontine policy, payable at his death to his wife, in case she survived him. It is doubtful from the testimony whether, on account of the loans above referred to, the policy had any cash or surrender value. At all events, the $85.10 does not appear to have been paid on this account, but as a return of the partial pay ments on premium, to which the agent of the company did not think it entitled after the lapse of the policy. The controlling fact, however, appearing in the record, is the uncontradicted testimony of the counsel for the bankrupt, who was also counsel for the creditors and the trustee, that the appellant consulted him in regard to this refund from the insurance society, and was told by said counsel that in his— “opinion, this money belonged to the Equitable Life Assurance Society, they having an assignment of these policies. I told him this. I advised him not to use the money for this reason, that we doubted the authority of the society to cancel its policies, and if he accepted this check, it would ratify the act, but I told him I thought the money was his wife’s or that of the Assurance Society.” There is no other testimony in regard to this payment, that in the. least degree impugns the good faith of the appellant, or suggests fraudulent concealment from the trustee. Conceding that not every concealment which is sufficient to bar a discharge will result in an indictment and conviction, it" } ]

[ { "docid": "22454853", "title": "", "text": "second step of the inquiry and “consider the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 132 S.Ct. at 1298, 1297). The Supreme Court has not established a definitive rule to determine what constitutes an “abstract idea” sufficient to satisfy the first step of the Mayo/Alice inquiry. See id. at 2357. Rather, both this court and the Supreme Court have found it sufficient to compare claims at issue to those claims already found to be directed to an abstract idea in previous cases. “[The Court] need Pot labor to delimit the precise contours of the ‘abstract ideas’ category in this case. It is enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here.” Alice, 134 S.Ct. at 2357; see also OIP Techs., 788 F.3d at 1362. For instance, fundamental economic and conventional business practices are often found to be abstract ideas, even if performed on a computer. See, e.g., OIP Techs., 788 F.3d at 1362-63. In setting up the two-stage Mayo/Alice inquiry, the Supreme Court has declared: “We must first determine whether the claims at issue are directed to a patent-ineligible concept.” Alice, 134 S.Ct. at 2355. That formulation plainly contemplates that the first step of the inquiry is a meaningful one, i.e., that a substantial class of claims are not directed to a patent-ineligible concept. The “directed to” inquiry, therefore, cannot simply ask whether the claims involve a patent-ineligible concept, because essentially every routinely patent-eligible claim involving physical products and actions involves a law of nature and/or natural phenomenon — after all, they take place in the physical world. See Mayo, 132 S.Ct. at 1293 (“For all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.”) Rather, the “directed to” inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether “their character as a whole" } ]

[ { "docid": "2594539", "title": "", "text": "by Affinity is Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). As in DDR Holdings, the focus of the claims in Enfish was on “an improvement to computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity.” Id. at 1336. In this case, the claims are directed not to an improvement in cellular telephones but simply to the use of cellular telephones as tools in the aid of a process focused on an abstract idea. That is not enough to constitute patentable subject matter. See Elec. Power Grp., op. at 1354; see also McRo, Inc. v. Bandai Namco Games Am. Inc., No. 15-1080, 837 F.3d 1299, 1314, 2016 WL 4896481, at *8-9 (Fed. Cir. Sep. 13, 2016) (claims held patent-eligible because they made “a specific asserted improvement in computer animation”). B In applying step two of the Mayo/Alice analysis, our task is to “determine whether the claims do significantly more than simply describe [the] abstract method” and thus transform the abstract idea into patentable subject matter. Ultramercial, 772 F.3d at 715. We look to see whether there are any “additional features” in the claims that constitute an “inventive concept,” thereby rendering the claims eligible for patenting even if they are directed to an abstract idea. Alice, 134 S.Ct. at 2357. Those “additional features” must be more than “well-understood, routine, conventional activity.” Mayo, 132 S.Ct. at 1298; Ultramercial, 772 F.3d at 715. Upon examining claim 1 and the specification of the ’379 patent, we find no “inventive concept” that transforms the abstract idea of out-of-region delivery of regional broadcasting into a patent-eligible application of that abstract idea. The claim simply recites the use of generic features of cellular telephones, such as a storage medium and a. graphical user interface, as well as routine functions, such as transmitting and receiving signals, to implement the underlying idea. That is not enough. As the Supreme Court stated in Alice, “generic computer implementation” is insufficient to transform a patent-ineligible abstract idea into a patent-eligible invention. Alice, 134 S.Ct. at 2352, 2357. More generally," }, { "docid": "153938", "title": "", "text": "patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice, 134 S.Ct. at 2354. First, a court must “determine whether the claims at issue arc directed to a patent-ineligible concept.” Id. If the patent is directed at a law of nature, natural phenomena, or abstract idea, the court must consider whether the claims contain an “inventive concept” that “transform the nature of the claim” into patent-eligible subject matter. Mayo, 132 S.Ct. at 1297-98. Defendant argues that Plaintiffs patent is directed at a patent-ineligible abstract idea. The Court, therefore, must first determine whether the claims in the T43 Patent are directed at an abstract idea. If so, the Court then must determine whether the claims contain a transformative inventive concept that transforms the abstract idea into a patent-eligible subject matter. (1) Whether the Claims in the T43 Patent are Directed to an Abstract Idea The Supreme Court has not precisely defined the outer limits of what constitutes an abstract idea, however, the Court has provided some concrete guidance. “The ‘abstract ideas’ category embodies the longstanding rule that an idea of itself is not patentable.” Alice, 134 S.Ct. at 2355 (citations and quotations omitted). Following this principal, the Supreme Court has held that “mathematical algorithms, including those executed on a generic computer, are abstract ideas.” DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed.Cir.2014) (citing Gottschalk v. Benson, 409 U.S. 63, 64, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972)). In addition, “longstanding commercial practices,” fundamental economic procedures, and other “well-understood, routine conventional activities,” are considered abstract ideas. Id.; Alice, 134 S.Ct. at 2356; Bilski v. Kappos, 561 U.S. 593, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed.Cir.2015). Further, “lying an abstract idea to a general purpose computer or to the Internet, without more, is generally insufficient to make an abstract idea patentable.” In re TLI Commc’ns LLC Patent Litig., 87 F.Supp.3d 773, 783 (E.D.Va.2015) (citing Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715-17 (Fed.Cir.2014). As described above, the" }, { "docid": "20895372", "title": "", "text": "773 F.3d 1245, 1256 (Fed.Cir.2014) (observing that the U.S. Supreme Court did not “delimit the precise contours of the ‘abstract ideas’ category in Alice”) (quotation marks omitted). As a result, in evaluating whether particular claims are directed to patent-ineligible abstract ideas, courts have generally begun by “compar[ing] claims at issue to those claims already found to be directed to an abstract idea in previous cases.” Enfish, LLC v. Microsoft Corp., No. 2015-1244, 822 F.3d 1327, 1334, 2016 WL 2756255, at *4 (Fed.Cir. May 12, 2016). Two of the U.S. Supreme Court’s leading cases concerning the “abstract idea” exception involved claims held to be abstract because they were drawn to longstanding, fundamental economic practices. See Alice, 134 S.Ct. at 2356 (claims “drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk” were directed to an unpat-entable abstract idea); Bilski, 561 U.S. at 611-12, 130 S.Ct. 3218 (claims drawn to “the basic concept of hedging, or protecting against risk” were directed to an un-patentable abstract idea because “[Fledg-ing is a fundamental economic practice long prevalent in our system of commerce and taught in any introductory finance class.”) (quotation marks omitted). Although courts have thus had little difficultly concluding that claims drawn to the simple automation of fundamental economic practices similar to those at issue in Bilski and Alice are abstract , the determination of whether other types of computer-implemented claims are abstract has proven more troublesome. See, e.g., Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1345 (Fed.Cir.2015) (“[Precision has been elusive in defining an all-purpose boundary between the abstract and the concrete[.]”). As a result, in addition to comparing claims to prior U.S. Supreme Court and Federal Circuit precedents, courts considering computer-implemented inventions have taken varied approaches to determining whether particular claims are directed to an abstract idea. For example, courts have considered whether the claims -purport to “improve the functioning of the computer itself,” Alice, 134 S.Ct. at 2359, which may suggest that the claims are not abstract, or instead whether “computers are invoked merely as a tool” to carry" }, { "docid": "11849849", "title": "", "text": "more than it would tend to promote it.” Id. Of course, “too broad an interpretation of this exclusionary principle [might] eviscerate patent law” because “all inventions at some level embody, use, reflect, rest upon, or apply laws of nature ... or abstract ideas.” Mayo Collaborative Svcs. v. Prometheus Laboratories, Inc., — U.S. -, 132 S.Ct. 1289, 1293, 182 L.Ed.2d 321 (2012). Striking the proper balance in identifying those “abstract ideas” that are too ephemeral to be patentable is not an easy task, as courts have repeatedly observed. E.g., Bilski v. Kappos, 561 U.S. 593, 130 S.Ct. 3218, 3236, 177 L.Ed.2d 792 (2010) (Stevens, J., concurring) (the Supreme Court has yet- to “provide[ ] a satisfying account of what constitutes an unpatentable abstract idea”); DDR Holdings, LLC v. Hotels.com, LP, 773 F.3d 245, 1255 (Fed.Cir.2014) (“[djistinguishing between claims that recite a patent-eligible invention and claims that add too little to a patent-ineligible abstract concept can be difficult, as the line separating the two is not' always clear.”) In Alice Corp., the Supreme Court identified a two’ part test to determine patent .eligibility under Section 101. First, a court must first identify if the claim is directed at an abstract -idea or other patent-ineligible concept. 134 S.Ct. at 2355. The Court looks at the claim elements both individually and in combination in determining whether a patent is aimed at an abstract idea Id. at 2355 n. 3; Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed.Cir.2014) (invalidating a patent where “the concept embodied by the majority of the limitations describes only the abstract idea” of showing an advertisement before providing free content). Next, the Court must determine if the remainder of the claim adds an “inventive concept” that includes an element or combination of elements that is “sufficient to ensure that the patent 'in practice amounts to' significantly more” than the abstract idea itself. Alice Corp., 134 S.Ct. at 2355. “Simply appending conventional steps, specified at a high level of generality,” to the abstract idea is not enough to create a patentable invention. Id. at 2357. A. Abstract Idea The Court" }, { "docid": "20895371", "title": "", "text": "of elements that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice, 134 S.Ct. at 2355. (citations omitted; alterations in original); see also In re TLI Commc’ns LLC Patent Litig., No. 2015-1372 (lead), 823 F.3d 607, 611, 2016 WL 2865693, at *2 (Fed.Cir. May 17, 2016) (describing “the now familiar two-part test described by the U.S. Supreme Court in Alice”). The Court discusses the contours of analysis under the two steps of the Alice framework below. 2. Alice Step One—Identification of Claims Directed to an Abstract Idea Neither the U.S. Supreme Court nor the Federal Circuit has set forth a bright line test separating abstract ideas from concepts that are sufficiently concrete so as to require no further inquiry under the first step of the Alice framework. See, e.g., Alice, 134 S.Ct. at 2357 (noting that “[the U.S. Supreme Court] need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case”); DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed.Cir.2014) (observing that the U.S. Supreme Court did not “delimit the precise contours of the ‘abstract ideas’ category in Alice”) (quotation marks omitted). As a result, in evaluating whether particular claims are directed to patent-ineligible abstract ideas, courts have generally begun by “compar[ing] claims at issue to those claims already found to be directed to an abstract idea in previous cases.” Enfish, LLC v. Microsoft Corp., No. 2015-1244, 822 F.3d 1327, 1334, 2016 WL 2756255, at *4 (Fed.Cir. May 12, 2016). Two of the U.S. Supreme Court’s leading cases concerning the “abstract idea” exception involved claims held to be abstract because they were drawn to longstanding, fundamental economic practices. See Alice, 134 S.Ct. at 2356 (claims “drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk” were directed to an unpat-entable abstract idea); Bilski, 561 U.S. at 611-12, 130 S.Ct. 3218 (claims drawn to “the basic concept of hedging, or protecting against risk” were directed to an un-patentable abstract idea because “[Fledg-ing is" }, { "docid": "15878545", "title": "", "text": "Bancorp, 687 F.3d at 1278-79. (“To salvage an otherwise patent-ineligible process, a computer must \"be integral to the claimed invention, facilitating the process in a way that a person making calculations or computations could not. [Merely] [u]sing a computer to accelerate an ineligible mental process does not make that process patent-eligible.”); Cogent Med., Inc. v. Elsevier Inc., 70 F.Supp.3d 1058, 1060 (N.D.Cal.2014) (Finding patent-ineligible claims that amounted to no more than a computer automation of what can be performed in the \"human mind, or by a human using a pen and paper)' (internal quotation marks and citation omitted). Finally, the patent’s ineligibility is confirmed by the machine-or-transformation test. Here, the transformation prong is inapplicable and the claimed methods are not tied to any particular machine. The claims require nothing more than a general purpose computer, “the mere recitation of [which] cannot transform a patent-ineligible abstract idea into a patent-eligible invention.” Alice, 134 S.Ct. at 1258. Instead, to confer patent eligibility on a claim, the computer “must play a significant part in permitting the claimed method to be performed, rather than function solely as an obvious mechanism for permitting a solution to be achieved more quickly— ” SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1333 (Fed.Cir.2010). As was discussed above, the generic computer required by the claims does no more than automate what “can be done mentally.” Benson, 409 U.S. at 67, 93 S.Ct. 253. In sum, the ’682 patent is directed to the abstract idea of searching and processing containerized data and does not contain an inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. Like the computer elements in Alice, the steps of the ’682 patent, considered individually or as an ordered combination, add nothing transformative to the patent. Rather, the claims of the ’862 patent merely recite routine and conventional computer operations and structures as a means of implementing the abstract idea of searching and processing containerized data. Accordingly, because the ’862 patent fails to claim patent-eligible subject matter, the court GRANTS defendants’ motion to dismiss as to the ’862 patent." }, { "docid": "2594524", "title": "", "text": "for determining whether a particular patent claim is directed to patentable subject matter is by now familiar. Section 101 of the Patent Act provides that “[wjhoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. The Supreme Court has held that the broad language of that provision is subject to an implicit exception for “laws of nature, natural phenomena, and abstract ideas,” which are not patentable. Alice, 134 S.Ct. at 2354. The Supreme Court has devised a two-stage framework to determine whether a claim falls outside the scope of section 101. The prescribed approach requires a court to determine (1) whether the claim is directed to a patent-ineligible concept, i.e.., a law of nature, a natural phenomenon, or an abstract idea, and if so, (2) whether the elements of the claim, considered “both individually and ‘as an ordered combination,’ ” add enough to “ ‘transform the nature of the claim’ into a patent-eligible application.” Alice, 134 S.Ct. at 2355 (quoting Mayo, 132 S.Ct. at 1297-98). In the context of claims that are challenged as containing only abstract ideas, those two stages are typically referred to as the “abstract idea” step and the “inventive concept” step. The “abstract idea” step of the inquiry calls upon us to look at the “focus of the claimed advance over the prior art” to determine if the claim’s “character as a whole” is directed to excluded subject mat ter. The “inventive concept” step requires us to look with more specificity at what the claim elements add, in order to determine “whether they identify an ‘inventive concept’ in the application of the ineligible subject matter” to which the claim is directed. Elec. Power Grp., LLC v. Alstom S.A., No. 2015-1778, 830 F.3d 1350, 1353, 2016 WL 4073318, at *3 (Fed. Cir. Aug. 1, 2016), ; see also Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016); Genetic Techs. Ltd. v. Merial L.L.C., 818" }, { "docid": "3758431", "title": "", "text": "upon the [ineligible concept] itself.’ ” Alice, 134 S.Ct. at 2355 (quoting Mayo, 132 S.Ct. at 1294) (alteration in original). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. at 2357 (quoting Mayo, 132 S.Ct. at 1297) (alterations in original). While Alice made clear that “[t]he mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent eligible invention[,]” id. at 2358, it is also clear that use of a computer does not automatically make a claim patent ineligible under § 101. .The ultimate question of patent eligibility is whether the patent claims an “inventive concept” such that the elements of the claim transform the abstract idea into a patent eligible invention:. In Diehr, the Supreme Court found a computer implemented process using a “well-known” mathematical formula for curing rubber was patent eligible. That was so because considering the claim elements as a whole, the claim in Diehr contained “additional steps” that “transformed the process into an inventive application” and “improved an existing technological process[.]” Alice, 134 S.Ct. at 2358 (citations omitted). A software pátent can be eligible under § 101 when it claims a solution to e£ problem necessarily rooted in computer technology, and does not merely recite a conventional business or economic practice known from a pre-Internet world that is simply implemented on a generic computer performing generic computer functions; DDR Holdings, LLC v. Hotels.com, L.P. 773 F.3d 1245, 1259 (Fed.Cir.2014) (“[T]he claimed solution amounts to an inventive concept for resolving this particular Internet-centric problem; rendering the claims patent eligible.”). In DDR Holdings, the patents were directed to systems and methods of generating a composite web page that combined visual elements of a host website with the content of a third-party merchant. Id. at 1248. The patents addressed the problem of retaining visitors to a host website which, as explained in the specification, would be transported away from the host website if the website visitor clicked on an advertisement which activated a hyperlink to" }, { "docid": "9659350", "title": "", "text": "alterations omitted). Accordingly, courts must “tread carefully in construing this exclusionary principle lest it swallow all of patent law.” Id. In Alice, the leading case on patent-eligible subject matter under § 101, the United States Supreme Court refined the “framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts” originally set forth in Mayo, 566 U.S. at 77, 132 S.Ct. 1289. This analysis, generally known as the “Alice” framework, proceeds in two steps as follows: First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts. If so, we then ask, “[w]hat else is there in the claims before us?” To answer that question, we consider the elements of each claim both individually and “as an ordered combination” to determine whether the additional elements “transform the nature of the claim” into a patent-eligible application. We have described step two of this analysis as a search for an “ ‘inventive concept’ ”—i.e., an element or combination of elements that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice, 134 S.Ct. at 2355 (citations omitted and alterations in original); see also In re TLI Comme’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016) (describing “the now familiar two-part test described by the U.S. Supreme Court in Alice”). 2. Alice Step One—Identification of Claims Directed to an Abstract Idea Neither the U.S. Supreme Court nor the Federal Circuit has set forth a bright line test separating abstract ideas from concepts that are sufficiently concrete so as to require no further inquiry under the first step of the Alice framework. See, e.g., Alice, 134 S.Ct. at 2357 (noting that “[the U.S. Supreme Court] need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case”); DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (observing that the U.S. Supreme Court did not “delimit the precise contours of the ‘abstract ideas’ category in Alice”)" }, { "docid": "20895370", "title": "", "text": "134 S.Ct. at 2354 (quotation marks and alterations omitted). Accordingly, courts must “tread carefully in construing this exclusionary principle lest it swallow all of patent law.” Id. In Alice, the leading case oh patent-eligible subject matter under Section 101, the U.S. Supreme Court refined the “framework for distinguishing patents that claim laws of nature,' natural phenomena, and abstract ideas' from- those that claim patent-eligible applications of those concepts”' originally set forth in Mayo, 132 S.Ct. at 1296-97. This analysis, generally known as the “Alice” framework, proceeds in two steps as follows: First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts. If so, we then ask, “[w]hat else is there in the claims before us?” To answer that question, we consider the elements of each claim both individually and “as an ordered combination” to determine whether the additional elements “transform the nature of the claim” into a patent-eligible application. We have described step two of this analysis as a search for an “ ‘inventive concept’”—i.e., an element or combination of elements that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice, 134 S.Ct. at 2355. (citations omitted; alterations in original); see also In re TLI Commc’ns LLC Patent Litig., No. 2015-1372 (lead), 823 F.3d 607, 611, 2016 WL 2865693, at *2 (Fed.Cir. May 17, 2016) (describing “the now familiar two-part test described by the U.S. Supreme Court in Alice”). The Court discusses the contours of analysis under the two steps of the Alice framework below. 2. Alice Step One—Identification of Claims Directed to an Abstract Idea Neither the U.S. Supreme Court nor the Federal Circuit has set forth a bright line test separating abstract ideas from concepts that are sufficiently concrete so as to require no further inquiry under the first step of the Alice framework. See, e.g., Alice, 134 S.Ct. at 2357 (noting that “[the U.S. Supreme Court] need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case”); DDR Holdings, LLC v. Hotels.com, L.P.," }, { "docid": "20895373", "title": "", "text": "a fundamental economic practice long prevalent in our system of commerce and taught in any introductory finance class.”) (quotation marks omitted). Although courts have thus had little difficultly concluding that claims drawn to the simple automation of fundamental economic practices similar to those at issue in Bilski and Alice are abstract , the determination of whether other types of computer-implemented claims are abstract has proven more troublesome. See, e.g., Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1345 (Fed.Cir.2015) (“[Precision has been elusive in defining an all-purpose boundary between the abstract and the concrete[.]”). As a result, in addition to comparing claims to prior U.S. Supreme Court and Federal Circuit precedents, courts considering computer-implemented inventions have taken varied approaches to determining whether particular claims are directed to an abstract idea. For example, courts have considered whether the claims -purport to “improve the functioning of the computer itself,” Alice, 134 S.Ct. at 2359, which may suggest that the claims are not abstract, or instead whether “computers are invoked merely as a tool” to carry out an abstract process. Enfish, 822 F.3d at 1336, 2016 WL 2756255 at *5; see also id. at 1335, 2016 WL 2756255 at *4 (noting that “some improvements in computer-related technology when appropriately claimed are undoubtedly not abstract, such as a chip architecture, an LED display, and the like. Nor do we think that claims directed to software, as opposed to hardware, are inherently abstract[,]”). Similarly, the Federal Circuit has considered whether claims are directed to “a problem that does not arise in the ‘brick and mortar context’ ” but rather is “particular to the Internet” as an indicator that a claim is not drawn to a patent-ineligible abstract idea. DDR Holdings, 773 F.3d at 1257-58 (holding that claims were not abstract where the “the claims recite an invention that is not merely the routine or conventional use of the Internet” but instead solve a specific problem by departing from “the routine, conventional functioning of Internet hyperlink protocol”). Another helpful tool used by courts in the abstract idea inquiry is consideration of whether the claims" }, { "docid": "19544625", "title": "", "text": "of Claims Directed to an Abstract Idea Neither the U.S. Supreme Court nor the Federal Circuit has set forth a bright-line test separating abstract ideas from concepts that are sufficiently concrete so as to require no further inquiry under the first step of the Alice framework. See, e.g. , Alice , 134 S.Ct. at 2357 (noting that \"[the U.S. Supreme Court] need not labor to delimit the precise contours of the 'abstract ideas' category in this case\"); DDR Holdings, LLC v. Hotels.com, L.P. , 773 F.3d 1245, 1256 (Fed. Cir. 2014) (observing that the U.S. Supreme Court did not \"delimit the precise contours of the 'abstract ideas' category\" in Alice (citation omitted) ). As a result, in evaluating whether particular claims are directed to patent-ineligible abstract ideas, courts have generally begun by \"compar[ing] claims at issue to those claims already found to be directed to an abstract idea in previous cases.\" Enfish, LLC v. Microsoft Corp. , 822 F.3d 1327, 1334 (Fed. Cir. 2016). Two of the U.S. Supreme Court's leading cases concerning the \"abstract idea\" exception involved claims held to be abstract because they were drawn to longstanding, fundamental economic practices. See Alice , 134 S.Ct. at 2356 (claims \"drawn to the concept of intermediated settlement, i.e. , the use of a third party to mitigate settlement risk\" were directed to a patent-ineligible abstract idea); Bilski , 561 U.S. at 611-12, 130 S.Ct. 3218 (claims drawn to \"the basic concept of hedging, or protecting against risk\" were directed to a patent-ineligible abstract idea because \"[h]edging is a fundamental economic practice long prevalent in our system of commerce and taught in any introductory finance class\" (citation omitted) ). Similarly, the U.S. Supreme Court has recognized that information itself is intangible. See Microsoft Corp. v. AT & T Corp. , 550 U.S. 437, 451 n.12, 127 S.Ct. 1746, 167 L.Ed.2d 737 (2007). Accordingly, the Federal Circuit has generally found claims abstract where they are directed to some combination of acquiring information, analyzing information, and/or displaying the results of that analysis. See FairWarning IP, LLC v. Iatric Sys., Inc. , 839 F.3d" }, { "docid": "19544624", "title": "", "text": "1289. Alice , 134 S.Ct. at 2355. This analysis, generally known as the \" Alice \" framework, proceeds in two steps as follows: First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts. If so, we then ask, \"[w]hat else is there in the claims before us?\" To answer that question, we consider the elements of each claim both individually and \"as an ordered combination\" to determine whether the additional elements \"transform the nature of the claim\" into a patent-eligible application. We have described step two of this analysis as a search for an \" 'inventive concept' \"-i.e. , an element or combination of elements that is \"sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.\" Id. (alterations in original) (citations omitted); see also In re TLI Commc'ns LLC Patent Litig. , 823 F.3d 607, 611 (Fed. Cir. 2016) (describing \"the now familiar two-part test described by the [U.S.] Supreme Court in Alice \"). 2. Alice Step One-Identification of Claims Directed to an Abstract Idea Neither the U.S. Supreme Court nor the Federal Circuit has set forth a bright-line test separating abstract ideas from concepts that are sufficiently concrete so as to require no further inquiry under the first step of the Alice framework. See, e.g. , Alice , 134 S.Ct. at 2357 (noting that \"[the U.S. Supreme Court] need not labor to delimit the precise contours of the 'abstract ideas' category in this case\"); DDR Holdings, LLC v. Hotels.com, L.P. , 773 F.3d 1245, 1256 (Fed. Cir. 2014) (observing that the U.S. Supreme Court did not \"delimit the precise contours of the 'abstract ideas' category\" in Alice (citation omitted) ). As a result, in evaluating whether particular claims are directed to patent-ineligible abstract ideas, courts have generally begun by \"compar[ing] claims at issue to those claims already found to be directed to an abstract idea in previous cases.\" Enfish, LLC v. Microsoft Corp. , 822 F.3d 1327, 1334 (Fed. Cir. 2016). Two of the U.S. Supreme Court's leading cases concerning the \"abstract" }, { "docid": "5599035", "title": "", "text": "(Fed. Cir. 2016). If the claims are determined to be directed tq.an abstract idea we next consider under step two whether -the claims contain an “inventive concept” sufficient to “transform the nar ture of the claim into a patent-eligible application.” Alice, 134 S.Ct. at 2355. 1. Alice Step One Under Alice step one we consider the claims in their entirety to ascertain whether they are directed to ineligible subject matter. Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015). We look to whether the claims “focus on a specific means or method[, -...] or are instead directed to a result or effect that itself is the abstract idea and merely invokes generic processes and machinery.” McRO, 837 F.3d at 1314 (citation omitted). The district court found that the claims of all seven of the asserted patents “are directed to the abstract idea of communicating information about a [mail object] by use of a marking.” Secure Mail, 169 F.Supp.3d at 1049. On appeal, Secured Mail argues that its claims are patent-eligible under Enfish, an opinion issued after the district court’s de- cisión in this case. In particular, the district court quoted the since-reversed district court decision in Enfish to hold that courts “should, recite a claim’s purpose at a reasonably high level of generality.” Secure Mail, 169 F.Supp.3d at 1048 (quoting Enfish, LLC v. Microsoft Corp., 56 F.Supp.3d 1167, 1173 (C.D. Cal. 2014), rev’d, 822 F.3d 1327 (Fed. Cir. 2016)). The Federal Circuit in Enfish held that the district court had described the claims at too high a level of abstraction, and “describing the claims at such a high level of abstraction and untethered from the language of the claims all but ensures that the exceptions to § 101 swallow the rule.” 822 F.3d at 1337. Here, despite the district court’s statement that “a reasonably high level of generality” should be used, the district court’s analysis correctly found that Secured Mail’s claims are directed to an abstract idea. The court in Enfish held the claims relating to a computer, database implementation to be patent-eligible under Alice" }, { "docid": "5599034", "title": "", "text": "v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1311 (Fed. Cir. 2016). Discussion The Patent Act defines patent-eligible subject matter as “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. The courts have created certain exceptions to the literal scope of § 101, determining that laws of nature, natural phenomena, and abstract ideas are not patent-eligible. Alice Corp. v. CLS Bank Int’l, — U.S. -, 134 S.Ct. 2347, 2354, 189 L.Ed.2d 296 (2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 133 S.Ct. 2107, 2116, 186 L.Ed.2d 124 (2013)). In Alice, the Supreme Court applied a two-step framework for analyzing whether claims are patent-eligible under section 101. First, we determine whether the claims at issue are “directed to” a judicial exception, such as an abstract idea. 134 S.Ct. at 2355. If not, the inquiry ends. Thales Visionix Inc. v. United States, 850 F.3d 1343, 1346 (Fed. Cir. 2017); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). If the claims are determined to be directed tq.an abstract idea we next consider under step two whether -the claims contain an “inventive concept” sufficient to “transform the nar ture of the claim into a patent-eligible application.” Alice, 134 S.Ct. at 2355. 1. Alice Step One Under Alice step one we consider the claims in their entirety to ascertain whether they are directed to ineligible subject matter. Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015). We look to whether the claims “focus on a specific means or method[, -...] or are instead directed to a result or effect that itself is the abstract idea and merely invokes generic processes and machinery.” McRO, 837 F.3d at 1314 (citation omitted). The district court found that the claims of all seven of the asserted patents “are directed to the abstract idea of communicating information about a [mail object] by use of a marking.” Secure Mail, 169 F.Supp.3d at 1049. On appeal, Secured Mail argues that its claims are patent-eligible" }, { "docid": "9659351", "title": "", "text": "that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice, 134 S.Ct. at 2355 (citations omitted and alterations in original); see also In re TLI Comme’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016) (describing “the now familiar two-part test described by the U.S. Supreme Court in Alice”). 2. Alice Step One—Identification of Claims Directed to an Abstract Idea Neither the U.S. Supreme Court nor the Federal Circuit has set forth a bright line test separating abstract ideas from concepts that are sufficiently concrete so as to require no further inquiry under the first step of the Alice framework. See, e.g., Alice, 134 S.Ct. at 2357 (noting that “[the U.S. Supreme Court] need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case”); DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (observing that the U.S. Supreme Court did not “delimit the precise contours of the ‘abstract ideas’ category in Alice”) (quotation marks omitted). As a result, in evaluating whether particular claims are directed to patent-ineligible abstract ideas, courts have generally begun by “comparing] claims at issue to those claims already found to be directed to an abstract idea in previous cases.” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1334 (Fed. Cir. 2016). Two of the U.S. Supreme Court’s leading cases concerning the “abstract idea” exception involved claims held to be abstract because they were drawn to longstanding, fundamental economic practices. See Alice, 134 S.Ct. at 2356 (claims “drawn to the concept of intermediated settlement, ie., the use of a third party to mitigate settlement risk” were directed to an unpat-entable abstract idea); Bilski, 561 U.S. at 611-12, 130 S.Ct. 3218 (claims drawn to “the basic concept of hedging, or protecting against risk” were directed to an un-patentable abstract idea because “[Pledging is a fundamental economic practice long prevalent in our system of commerce and taught in any introductory finance class.”) (quotation marks omitted). Similarly, the U.S. Supreme Court has recognized that information itself is" }, { "docid": "11849848", "title": "", "text": "arguing for the first time that Mtel’s patent was invalid under Alice Corp., a 2014 United States Supreme Court ease that continued that Court’s recent trend of invalidating abstract method patents. While that motion perhaps could have been filed a bit sooner, the Court elected to entertain it given the likelihood that the issue would be raised at trial. (Order, Doc. 148.) III. DISCUSSION The Patent Act provides protection for those who “discover[] any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. This statute has long contained an important exception: “Laws of nature, natural phenomena, and abstract ideas are not patentable.” Alice Corp. Pty. Ltd. v. CLS Bcmk Int'l — U.S. —-, 134 S.Ct. 2347, 2354, 189 L.Ed.2d 296 (2014) (citations and quotation marks omitted). The exception exists because “[l]aws of nature, natural phenomena, and abstract ideas are the basic tools of scientific and technological work,” and “Monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it.” Id. Of course, “too broad an interpretation of this exclusionary principle [might] eviscerate patent law” because “all inventions at some level embody, use, reflect, rest upon, or apply laws of nature ... or abstract ideas.” Mayo Collaborative Svcs. v. Prometheus Laboratories, Inc., — U.S. -, 132 S.Ct. 1289, 1293, 182 L.Ed.2d 321 (2012). Striking the proper balance in identifying those “abstract ideas” that are too ephemeral to be patentable is not an easy task, as courts have repeatedly observed. E.g., Bilski v. Kappos, 561 U.S. 593, 130 S.Ct. 3218, 3236, 177 L.Ed.2d 792 (2010) (Stevens, J., concurring) (the Supreme Court has yet- to “provide[ ] a satisfying account of what constitutes an unpatentable abstract idea”); DDR Holdings, LLC v. Hotels.com, LP, 773 F.3d 245, 1255 (Fed.Cir.2014) (“[djistinguishing between claims that recite a patent-eligible invention and claims that add too little to a patent-ineligible abstract concept can be difficult, as the line separating the two is not' always clear.”) In Alice Corp., the Supreme Court identified a two’" }, { "docid": "16978806", "title": "", "text": "the concept patentable.” Bilski, 561 U.S. at 612, 130 S.Ct. 3218. ■ Illusory limitations, which describe only procedure or structure common to every means. of accomplishing a given result, also eannot provide an inventive concept. Put another way, limitations that simply “comprise the abstract concept” are not inventive. See Ultramercial Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014). For example, a claim cannot become eligible by reciting that physical automation is accomplished by a “machine” or that logical automation is accomplished by a “computer,” see OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015), because physical automation requires a machine and logical automation requires a computer. Because such elements cannot restrict a claim to a particular way of automating, recitation of a machine or computer “to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility.” CLS Bank Int’l v. Alice Corp., 717 F.3d 1269, 1286 (Fed. Cir. 2013). Post-Aiice, we have only once found that a claim’s additional limitations provide an inventive concept. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014). In DDR, we held that “a specific way to automate the creation of a composite web page” was patent eligible even though the underlying abstract idea of “increasing sales by making two web pages look the same” was not. DDR, 773 F.3d at 1259 (emphasis added). In doing so, we distinguished our precedent on the basis that the DDR claims “do not broadly and generically claim ‘use of the Internet’ ” to achieve the desired result, but instead “specify how interactions with the Internet are manipulated to yield a desired result.” Id. at 1258. We cautioned that “not all claims purporting to address [technological] challenges are eligible for patent.” Id. Instead, only claims specifying how to overcome those technological challenges are eligible. In summary, the eligibility inquiry requires us to first determine whether the claim is “directed to” an abstract idea (such as a result) rather than to an application (such as a" }, { "docid": "21552278", "title": "", "text": "or any new and useful improvement thereof’ may obtain a patent. 35 U.S.C. § 101. The Supreme Court has repeatedly emphasized that patent protection should not extend to claims that monopolize “the basic tools of scientific and technological work.” Gottschalk v. Benson, 409 U.S. 63, 67, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972); Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71, 132 S.Ct. 1289, 182 L.Ed.2d 321 (2012); Alice Corp. Pty. v. CLS Bank Int'l, — U.S. -, 134 S.Ct. 2347, 2354, 189 L.Ed.2d 296 (2014). Accordingly, laws of nature, natural phenomena, and abstract ideas are not patent-eligible subject matter. Alice, 134 S.Ct. at 2354. The Supreme Court’s two-part Alice framework guides courts in distinguishing between patent claims that impermissi-bly claim the “building blocks of human ingenuity” and those that “integrate the building blocks into something more.” Id. (internal quotations omitted). First, we “determine whether the claims at issue are directed to a patent-ineligible concept.” Id. at 2355. If so, we “examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Id. at 2357 (quoting Mayo, 566 U.S. at 72, 79, 132 S.Ct. 1289). We begin our analysis at Alice step one: “whether the claims at issue are directed to a patent-ineligible concept.” Id. at 2355. While the two steps of the Alice framework are related, the “Supreme Court’s formulation makes clear that the first-stage filter is a meaningful one, sometimes ending the § 101 inquiry.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). The Supreme Court “has not established a definitive rule to determine what constitutes an ‘abstract idea’ ” for the purposes of step one. Enfish, 822 F.3d at 1334 (citing Alice, 134 S.Ct. at 2357). We have held claims ineligible as directed to an abstract idea when they merely collect electronic information, display information, or em body mental processes that could be performed by humans. Elec. Power Grp., 830 F.3d at 1353-54 (collecting cases). At the same time, “all inventions at some level" }, { "docid": "20895408", "title": "", "text": "carried out manually.” Id. The complexity upon which the patentee relied, however, was not reflected in the actual claims at issue, which required at most “two sets of Bingo Numbers,” a “player,” and “a manager.” Id. That is equally true in the instant case, where the claims are not limited to complex tests for complex memory devices, or similarly restricted in a manner which somehow might make the “near-instantaneous speed of memory operations” which Plaintiff cites relevant. See Opp. at 13. As in Planet Bingo, the use of a computer in the Papst Patents might make a tedious verification process faster and more efficient, but it does not change the fundamental fact that the functions recited could also be performed by humans without a computer. Cf. ’759 patent, col. 3:51-52; col. 6:18-21 (suggesting that invention lifts the “burden” from human test writer by automating manual process previously performed). As noted above, whether a claim reflects routine automation of steps that could be performed by humans mentally or with a pencil and paper is a useful tool in determining whether the claim as a whole is directed to an abstract idea. See, e.g., Mortgage Grader, 811 F.3d at 1324; cf. CyberSource, 654 F.3d at 1373. Here, the asserted claims’ reflection oí generic, and conventional, computerization of processes previously performed by humans without computers confirms the Court’s conclusion that the asserted claims are directed to patent-ineligible abstract ideas. For the reasons stated above, the Court concludes that each of the asserted claims is directed to a patent-ineligible abstract idea. See Alice, 134 S.Ct. at 2355. B. Alice Step Two—Whether the Asserted Claims Contain an “Inventive Concept” Sufficient to Confer Patent Eligibility Having determined that the asserted claims are directed to patent-ineligible abstract ideas, the Court proceeds to the second step of the Alice framework to determine whether the claim’s limitations—considered individually or as an ordered combination—serve to “transform the claims into a patent-eligible application.” Content Extraction, 776 F.3d at 1348. Here, the Court concludes that the asserted claims’ limitations, considered both individually and as a whole, include no such transformation or inventive" } ]

[ { "docid": "22720842", "title": "", "text": "Justice Blackmun delivered the opinion of the Court. The Bankruptcy Code excludes from the bankruptcy estate property of the debtor that is subject to a restriction on transfer enforceable under “applicable nonbankruptcy law.” 11 U. S. C. § 541(c)(2). We must decide in this case whether an antialienation provision contained in an ERISA-qualified pension plan constitutes a restriction on transfer enforceable under “applicable nonbankruptcy law,” and whether, accordingly, a debtor may exclude his interest in such a plan from the property of the bankruptcy estate. HH Respondent Joseph B. Shumate, Jr., was employed for over 30 years by Coleman Furniture Corporation, where he ultimately attained the position of president and chairman of the board of directors. Shumate and approximately 400 other employees were participants in the Coleman Furniture Corporation Pension Plan (Plan). The Plan satisfied all applicable requirements of the Employee Retirement Income Security Act of 1974 (ERISA) and qualified for favorable tax treatment under the Internal Revenue Code. In particular, Article 16.1 of the Plan contained the antialienation provision required for qualification under § 206(d)(1) of ERISA, 29 U. S. C. § 1056(d)(1) (“Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated”). App. 342. Shumate’s interest in the Plan was valued at $250,000. Id., at 93-94. In 1982, Coleman Furniture filed a petition for bankruptcy under Chapter 11 of the Bankruptcy Code. The case was converted to a Chapter 7 proceeding, and a trustee, Roy V. Creasy, was appointed. Shumate himself encountered financial difficulties and filed a petition for bankruptcy in 1984. His case, too, was converted to a Chapter 7 proceeding, and petitioner John R. Patterson was appointed trustee. Creasy terminated and liquidated the Plan, providing full distributions to all participants except Shumate. Patterson then filed an adversary proceeding against Creasy in the Bankruptcy Court for the Western District of Virginia to recover Shumate’s interest in the Plan for the benefit of Shumate’s bankruptcy estate. Shumate in turn asked the United States District Court for the Western District of Virginia, which already had jurisdiction over a related proceeding, to compel" } ]

[ { "docid": "16906985", "title": "", "text": "trustee in bankruptcy has the right to assign a debtor’s structured settle ment payments subject to and in light of 215 ILCS 5/155.34 and anti-assignment provisions in the structured settlement documents, like those involved in the instant matter. After closely reviewing the relevant statutory and case authority, the Court concludes that the Trustee is not entitled to summary judgment as a matter of law. Pursuant to 11 U.S.C. § 363(b)(1), a trustee may, after notice and a hearing, “use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b)(1). Property of the estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Property rights belonging to the debtor become assets of the bankruptcy estate. Koch Refining v. Farmers Union Cent. Exch., Inc., 831 F.2d 1339, 1343 (7th Cir.1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1077, 99 L.Ed.2d 237 (1988). “Property interests are created and defined by state law.” Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). “The nature of a debtor’s interest in property is determined by state law ..., but the question whether the resulting interest should count as ‘property of the estate’ for § 541 purposes is an issue of federal law.” Fisher v. Apostolou, 155 F.3d 876, 880 (7th Cir.1998) (citations omitted). Thus, the second affirmative defense of TASC and TOLIC is rejected as this Court has proper subject matter jurisdiction of all assets constituting the bankruptcy estate under § 541, pursuant to 28 U.S.C. § 1334(b) and (e) by which non-exclusive jurisdiction is vested in the District Court for the Northern District of Illinois for this related adversary proceeding, and which court has exclusive jurisdiction of all property of the debtor and the estate. TASC and TOLIC do not dispute that the payments under the structured Settlement Agreement are property of the Debt- or’s estate. Rather, they dispute whether the Trustee has the right to assign and sell the payments now to discount the future payments" }, { "docid": "16861927", "title": "", "text": "Now before this Court is the Motion of the Debtors to Disburse Funds in their former bankruptcy case which was dismissed by the Court. As this matter concerns the prior administration of the bankruptcy estate, it qualifies as a core proceeding over which this Court has jurisdiction to enter final orders and judgments. 28 U.S.C. § 157(b)(2)(A). In the Debtors’ former bankruptcy case, the Chapter 13 Trustee, based upon payments received from the Debtors under their confirmed Chapter 13 plan, still has within his custody the sum of $15,600.00. It is the position of the Trustee that these funds should be distributed to the Debtors’ creditors according to the terms of their confirmed Chapter 13 plan. By way of their Motion to Disburse Funds, however, the Debtors take the opposite position, arguing that they are entitled to receive these funds. In the alternative, the Debtors argue that only those claims which were allowed may be paid from estate assets, thereby preluding any distribution to Deutsche Bank whose claim remained in dispute at the time the Debtors’ case was dismissed. Among the duties prescribed by the Bankruptcy Code, a Chapter 13 trustee is required to account for all property received during the administration of the case. 11 U.S.C. § 1302(b)(1) and § 704(a)(2). In turn, the Bankruptcy Code requires that, as a condition to a Chapter 13 plan being confirmed, a debtor must provide for the submission to the control of the trustee that portion of their future income which is necessary to effectuate the plan. 11 U.S.C. § 1822(a)(1). Taken together, these requirement mean that a Chapter 13 trustee must ensure that monies received are accounted for and then distributed in accordance with the Bankruptcy Code and the terms of a confirmed Chapter 13 plan. Accord 11 U.S.C. § 1326(c) (“Except as otherwise provided in the plan or in the order confirming the plan, the trustee shall make payments to creditors under the plan.”). In this case, the terms of the order confirming the Debtors’ Chapter 13 plan explicitly provided that “all funds remaining in the hands of the Trastee" }, { "docid": "23006109", "title": "", "text": "maintain that even if other types of exempt property must be included in the calculation of disposable income, social security benefits are different because they are subject to a strict anti-alienation statute. Section 207 of the Social Security Act, 42 U.S.C. § 407, provides: (a) The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this sub-chapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law. (b) No other provision of law, enacted before, on, or after April 20, 1983, may be construed to limit supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section. Discussion of the impact of 42 U.S.C. § 407 on bankruptcy cases has centered mainly on whether that statute prohibits a Chapter 13 debtor from assigning social security benefits to a Chapter 13 trustee for the benefit of creditors. Despite the fact that there is no express reference to 42 U.S.C. § 407 in the Bankruptcy Code, several courts have concluded that no such prohibition exists. See United States v. Devall, 704 F.2d 1513, 1517 (11th Cir.1983); Regan v. Ross, 691 F.2d 81, 85 (2d Cir.1982); In re Penland, 11 B.R. 522, 524 (N.Ga.1981). At least one court, the Sixth Circuit Court of Appeals in In re Buren, 725 F.2d 1080, 1086 (6th Cir.1984), has found the anti-alienation provision controlling. The Debtors contend that although the Ninth Circuit Court of Appeals has not ruled on this issue, it has held that because a bankruptcy court has no jurisdiction over homestead property, such property cannot be administered by the bankruptcy court. In re Graziadei 32 F.3d 1408, 1410 (9th Cir.1994). The Debtors analogize that the court also lacks jurisdiction over exempt social security benefits and therefore cannot administer these assets. The bankruptcy court gave the following response to this argument: While it is true that" }, { "docid": "23006110", "title": "", "text": "to a Chapter 13 trustee for the benefit of creditors. Despite the fact that there is no express reference to 42 U.S.C. § 407 in the Bankruptcy Code, several courts have concluded that no such prohibition exists. See United States v. Devall, 704 F.2d 1513, 1517 (11th Cir.1983); Regan v. Ross, 691 F.2d 81, 85 (2d Cir.1982); In re Penland, 11 B.R. 522, 524 (N.Ga.1981). At least one court, the Sixth Circuit Court of Appeals in In re Buren, 725 F.2d 1080, 1086 (6th Cir.1984), has found the anti-alienation provision controlling. The Debtors contend that although the Ninth Circuit Court of Appeals has not ruled on this issue, it has held that because a bankruptcy court has no jurisdiction over homestead property, such property cannot be administered by the bankruptcy court. In re Graziadei 32 F.3d 1408, 1410 (9th Cir.1994). The Debtors analogize that the court also lacks jurisdiction over exempt social security benefits and therefore cannot administer these assets. The bankruptcy court gave the following response to this argument: While it is true that in a Chapter 7 case a bankruptcy court does not have jurisdiction over and cannot administer exempt property because such property could not ‘conceivably have any effect’ on the estate, in the instant case neither the Trustee nor this Court seek to administer exempt property. The issue is simply a matter of whether the Debtors’ Plan satisfies the disposable income confirmation requirement of § 1325(b)(1)(B). Hagel, supra, 171 B.R. at 688 (citations and footnote omitted). We agree with the bankruptcy court. For one thing, bankruptcy courts arguably have jurisdiction over exempt property in a Chapter 13 case, as the property could have an effect on the estate. Section 1322(b) allows a debtor to make plan payments from exempt property. Secondly, the issue of whether a Chapter 13 trustee may administer exempt assets is different from the issue of whether those assets should be included in disposable income. This is especially true because, as a practical matter, even if social security benefits could not be assigned directly to a Chapter 13 trustee, a willing debtor simply" }, { "docid": "1174001", "title": "", "text": "much broader than its predecessor, § 2a(15) of the prior Act. Unlike the restriction under prior law that an order of a bankruptcy court must be “necessary for the enforcement of the provisions of this title,” § 105 authorizes the bankruptcy court to also issue orders “appropriate to carry out the provisions of this title.” The power contained in § 105 is arguably , more extensive than that contained in the All Writs Statute, 28 U.S.C. § 1651. Section 105 complements the all encompassing grant of jurisdiction now contained in 28 U.S.C. § 1471, which provides in part: (e) the bankruptcy court in which a case under Title 11 is commenced shall have exclusive jurisdiction of all of the property, wherever located, of the debtor, as of the commencement of such case. As outlined below, the debtor’s right to receive social security benefits is property of the Chapter 13 estate. Such property is unquestionably within the jurisdiction of the United States Bankruptcy Court. Section 105(a) authorizes the Bankruptcy Court to issue orders “necessary and appropriate” to carrying out the provisions of the Chapter 13 plan. The plan herein calls for the payment of social security benefits to the Trustee for distribution to creditors. The Social Security Administration cannot claim the immunity from income deduction orders which may have been available under prior law. As demonstrated in United States v. Krakover, 377 F.2d 104 (10th Cir. 1967), agencies of the United States government had realized some insulation from income deduction orders in Chapter 13 cases under prior law. In Krakover the 10th Circuit reasoned that § 658(2) of the prior Bankruptcy Act, 11 U.S.C. § 1058(2), limited the enforceability of income deduction orders in Chapter 13 cases to an “employer” other than the United States government. The language of § 1325(b) of the Code and the definitions contained in § 101 clearly overrule the immunity analysis in Krakover. Moreover, 11 U.S.C. § 106 specifically addresses the immunity issue as follows: Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity— (1) a provision" }, { "docid": "13606329", "title": "", "text": "interest may often turn on non-bankruptcy law, but once it is determined that such an interest exists, it becomes part of the debtor’s estate by operation of law under § 541 of the new Bankruptcy Code. Chapter 13 expressly incorporates § 541 and, in addition, defines as property of the estate all benefits received throughout the pendency of a Chapter 13 case. See In re Dawson, 13 B.R. 107, 109 (Bkrtcy.M.D.Ala.1981) (state disability benefits part of Chapter 13 debt- or’s estate); In re Howell, 4 B.R. 102, 106 (Bkrtcy.M.D.Tenn.1980) (payments under Federal Employees’ Compensation Act); In re Buren, 6 B.R. 744, 746-47 (Bkrtcy.M.D.Tenn.1980) (payments under Social Security Act). The systems do not dispute that the retirees in this case have a legal or equitable interest in their pension benefits, and this is the crucial determinant of what constitutes property of the estate under the Code. Whether this interest is treated as fully vested at the time of filing or as a series of entitlements that accrue throughout the duration of the Chapter 13 payment plan is immaterial for present purposes. The Code anticipates both of these contingencies and captures the benefits in each case for the debtor’s estate. As property of the estate, the benefits may be used by the debtor, through the trustee, to pay claims under a Chapter 13 plan. The income deduction procedure at issue in this case is but a specific example of the bankruptcy court’s authority to issue whatever orders are “necessary or appropriate” to implement the Code. Under Chapter 13, the “future income of the debtor” is subject to such “supervision and control of the trustee as is necessary for the execution of the [repayment] plan.” 11 U.S.C. § 1322(a)(1). Income deduction orders may therefore be issued by the bankruptcy court to “any entity from whom the debtor receives income.” Id. § 1325(b). Section 541(c)(2) Exception The retirement systems nevertheless argue that the anti-assignment provision’s operation is saved by dint of 11 U.S.C. § 541(c)(2), which provides that “[a] restriction on the transfer of a beneficial interest of the debtor in a trust that" }, { "docid": "16906986", "title": "", "text": "440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). “The nature of a debtor’s interest in property is determined by state law ..., but the question whether the resulting interest should count as ‘property of the estate’ for § 541 purposes is an issue of federal law.” Fisher v. Apostolou, 155 F.3d 876, 880 (7th Cir.1998) (citations omitted). Thus, the second affirmative defense of TASC and TOLIC is rejected as this Court has proper subject matter jurisdiction of all assets constituting the bankruptcy estate under § 541, pursuant to 28 U.S.C. § 1334(b) and (e) by which non-exclusive jurisdiction is vested in the District Court for the Northern District of Illinois for this related adversary proceeding, and which court has exclusive jurisdiction of all property of the debtor and the estate. TASC and TOLIC do not dispute that the payments under the structured Settlement Agreement are property of the Debt- or’s estate. Rather, they dispute whether the Trustee has the right to assign and sell the payments now to discount the future payments to a present cash value, not whether the Trustee has the right to receive the payments on behalf of the Debt- or’s estate over the remainder of the Debt- or’s life or the remainder of the twenty-year guaranteed term of the Settlement Agreement. Illinois law governs here. Under Illinois law, TASC and TOLIC argue that, pursuant to 215 ILCS 5/155.34, the Trustee is barred from selling or assigning the contract rights. That statute provides in pertinent part: (a) No insurance company may make payments on a structured settlement of a claim for personal injury to anyone other than the beneficiary of the settlement without prior approval of the circuit court of the county where an action was or could have been maintained. (b) No person who is the beneficiary of a structured settlement of a claim for personal injury may assign in any manner the payments of the settlement without prior approval of the circuit court of the county where an action was or could have been maintained. 215 ILCS 5/155.34 (emphasis supplied). The statute" }, { "docid": "8311883", "title": "", "text": "of the moneys paid or payable or rights existing under this sub-chapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law. 42 U.S.C. § 407 (emphasis added). One of the changes which Congress sought to make by enactment of the Bankruptcy Code was to expand the types of interests which could be assigned under Chapter 13, and those expanded interests appear to include social security benefits. Chapter 13 provides for the voluntary assignment of any interests contained in the estate. See, 11 U.S.C. § 1322. The estate of any person filing for relief under the Bankruptcy Code includes “all legal or equitable interests of the debt- or in property as of the commencement of the case.” 11 U.S.C. § 541(a). In addition, the estate of a Chapter 13 debtor includes all legal or equitable interests in property which “the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7 or 11 of this title, whichever occurs first.” 11 U.S.C. § 1306(a)(1). The estate of a Chapter 13 debtor therefore includes all regular sources of income, unlike the estate of a debtor under a chapter 7 liquidation. See, 11 U.S.C. § 726. The drafters of the Bankruptcy Code appear to have specifically included in the estate even interests which are not otherwise assignable, such as social security benefits. According to 11 U.S.C. § 541(c)(1)(A), the estate includes all legal and equitable interests of the debtor “notwithstanding any provision . .. that restricts or conditions transfer of such interest by the debt- or. . . .” More clearly than in the Code itself, Congress manifested its intent to exempt Chapter 13 debtors from the anti-assignment provisions of the Social Security Act in the legislative history of the Bankruptcy Code. The basic purpose of Chapter 13 is to enable an individual who has a regular source of income “to pay his debts and avoid bankruptcy by making periodic payments to a trustee under bankruptcy court protection.” S.Rep.No." }, { "docid": "2910015", "title": "", "text": "debtor. 11 U.S.C. § 1327(b). The Third Circuit recently addressed at what point a debtor’s postconfirmation payments to the Chapter 13 trustee leave the estate: [N]o provision in the Bankruptcy Code classifies any property, including post-petition wages, as belonging to creditors .... In the context of a Chapter 13 case, § 1327(b) vests all property of the Chapter 13 estate in the debtor on confirmation of the plan. Thus when the debtor transfers funds to the Chapter 13 trustee to fulfill its obligations under a confirmed plan (or, as here, wages are assigned directly to the Chapter 13 trustee under a garnishment order), the funds become part of the estate, and the debtor retains a vested interest in them. Though creditors have a right to those payments based on the confirmed plan, the debtor does not lose his vested interest until the trustee affirmatively transfers the funds to creditors. In re Michael, 699 F.3d 305, 312-13 (3d Cir.2012); see also In re Slaughter, 141 B.R. 661, 663 (Bankr.N.D.Ill.1992) (citing Nash, 765 F.2d at 1414); cf. In re Heath, 115 F.3d 521, 524 (7th Cir.1997) (earnings of a debtor necessary to fulfillment of a plan are property of the estate under the control of the trustee). Further, despite the language in section 349(b)(3) that indicates that property should be revested in the entity in which it was vested prior to commencement of the case, it does not matter whether the funds held by the Chapter 13 trustee at the time of dismissal were part of the prepetition estate or became part of the estate postpetition. See Hamilton, 493 B.R. at 39 (“Section 349(b)(3) is not ambiguous: At dismissal — unless the court, for cause, orders otherwise — all postpetition earnings of the debtor vest in the debtor.”); Slaughter, 141 B.R. at 663 (“It would be anomalous to give prepetition property of the estate to the debtor under § 349(b)(3) and postpetition property of the estate to creditors.”); see also Weatherspoon, 2014 WL 61405, at *3. Because the funds held by the Trustee at the time of dismissal were still property of" }, { "docid": "18596974", "title": "", "text": "noted this appeal. II The dispositive issue is whether McLean’s interest in the trust fund is bankruptcy estate property, hence subject to a pay order. The Trustee contends that it is; Central, that it is not. We agree with Central. We construe the relevant statutory provisions as follows. The Bankruptcy Code, 11 U.S.C. § 541(a)(1), now broadly brings within the definition of estate property all legal or equitable interests of the debtor in property except for interests defined in §§ 541(b) and 541(c)(2). See Bezanson v. Maine National Bank (In re Kwaak), 42 B.R. 599, 601 (Bankr.D.Me.1984). Section 541(c)(2) provides that a restriction on the transfer of a beneficial interest in a trust enforceable under applicable non-bankruptcy law is enforceable in bankruptcy. Therefore, interests of the debtor subject to such enforceable transfer restrictions are not estate property. See id. The estate property definition of § 541 is adopted for Chapter 13 plans by 11 U.S.C. § 1306(a), which for purposes of Chapter 13 proceedings also draws into the definition of estate property after-acquired property of the debtor that would qualify under § 541 as estate property. Hence, a pensioner’s interest in a trust fund that in the hands of the fund trustee is subject to an enforceable transfer restriction and is therefore not in that form § 541 estate property, may become estate property in a Chapter 13 plan once paid to the debtor under terms of the trust. Under this construction of the relevant statutory provisions, the only remaining question is whether the restriction on transfer in the Central trust agreement is enforceable under Illinois law, which gov erns the fund. If it is, the restriction is also enforceable in bankruptcy under § 541(c)(2), and McLean’s pre-distribution interest in the fund is excluded from estate property by operation of § 541(c)(2) as adopted for Chapter 13 proceedings by § 1306. On this point, it is clear that the anti-assignment provision of the Central trust agreement would be enforceable under governing Illinois law as a valid restriction on transfer. Illinois courts have long recognized the enforceability of spendthrift trusts, holding" }, { "docid": "17997316", "title": "", "text": "by NL Industries. In further support of this argument, defendants offer as persuasive authority a recent Private Letter Ruling (81-31020 May 5, 1981) issued by the Internal Revenue Service. Private Letter Ruling 81-31020 indicated that a Bankruptcy Court Order which directed a pension plan to turnover a specified percentage of a retiree’s monthly benefits to a trustee under a Chapter 13 case, would cause disqualification of the plan under the tax provisions of Internal Revenue Code Section 401(a)(13). Addressing this argument, this court notes that ERISA Section 1144(d) provides in relevant part that “Nothing in this sub-chapter shall be construed to alter, amend, modify, invalidate, impair or supercede any law of the United States....” 29 U.S.C. § 1144(d) (1979). Since this court has ruled that the ERISA plans in question do not fall under the exceptions permitted by Section 541(c)(2), the normal anti-alienation requirements of ERISA conflict with Section 541(c)(1)(A) of the Bankruptcy Code. Section 541(c)(1)(A) provides: “Except as provided in paragraph (2) of this subsection, an interest of the debtor in property becomes property of the estate under subsection (a)(1), (a)(2), or (a)(5) of this section notwithstanding any provision — (A) that restricts or conditions transfer of such interest by the debtor;” Consequently, this court holds that to the extent that the provisions of the Bankruptcy Code and ERISA conflict, Section 541(c)(1)(A) implicitly amends the normal anti-alienation provisions of ER-ISA. See Regan v. Ross, 691 F.2d 81, 87 (2d Cir.1982) (“to the extent Congress evidenced clear intent to include pension benefits in the property of a Chapter 13 estate” —a matter which the Ross court found to exist in an ERISA situation similar to the one before this court — “it necessarily amended § 401(a)(13) and applicable Treasury Regulations accordingly”). See also Clotfelter v. Ciba-Geigy Corp. (In re Threewitt), 20 B.R. 434, 439 (Bkrtcy.D.Kan.1982), rev’d 24 B.R. 927 (D.Kan.1982). Additionally, this court is not bound by the private letter ruling mentioned previously, 26 U.S.C. § 6110(i)(3) (1976), and in any event, this court does not agree with the position taken by the Internal Revenue Service therein. See Regan v." }, { "docid": "19281561", "title": "", "text": "portion of the annuity assigned by the Debtor to Wentworth on March 17, 1998, is property of the bankruptcy estate. The Bankruptcy Code provides that the filing of a bankruptcy petition creates an estate comprising “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (1996). What constitutes estate property is said to be a question of federal law. Charles R. Hall Motors, Inc. v. Lewis (In re Lewis), 137 F.3d 1280, 1283 (11th Cir.1998) (citing Southtrust Bank of Alabama v. Thomas (In re Thomas), 883 F.2d 991, 995 (11th Cir.1989), cert. denied, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990)). However, property rights and interests are defined by state law principles. Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); Lewis, 137 F.3d at 1283 (citations omitted). Accordingly, the Court must resort to state law to ascertain whether the Debtor had a legal or equitable interest in the annuity on the filing date, such that the monthly income derived therefrom must be considered and treated as estate property. This analysis requires a two-step process. The Court must first determine whether the Debtor validly assigned his interest in the annuity to Wentworth. Second, the Court will address the issue of ownership of the annuity payments. The Debtor directs the Court’s attention to the Settlement Agreement, specifically the anti-assignment clause in paragraph 7(f)- According to the Debtor, he lacked authority to assign the monthly payments to Wentworth. Neither Wentworth nor the Chapter 13 Trustee disputes the fact that paragraph 7(f) unequivocally prohibits the Debtor from selling or assigning the annuity’s income stream. They do, however, oppose the Debtor’s use of paragraph 7(f) to effectuate a rescission of the Purchase Agreement. For all intents and purposes, the Debtor ignored paragraph 7(f) by executing the Purchase Agreement (presumably because he deemed it to be in his best interest to do so). Now, almost two years later, and because he needs money to fund his Chapter 13 plan, the Debtor seeks to revive and attach" }, { "docid": "20211582", "title": "", "text": "Accordingly, we affirm the order of the bankruptcy court. In Hamilton v. Lanning, — U.S.-, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010), the Supreme Court summarized the key features of a Chapter 13 bankruptcy proceeding: Chapter 13 ... provides bankruptcy protection to “individual[s] with regular income” whose debts fall within statutory limits. 11 U.S.C. §§ 101(30), 109(e). Unlike debtors who file under Chapter 7 and must liquidate their nonexempt assets in order to pay creditors, see §§ 704(a)(1), 7126, Chapter 13 debtors are permitted to keep their property, but they must agree to a court-approved plan under which they pay creditors out of their future income, see §§ 1306(b), 1321, 1322(a)(1), 1328(a). A bankruptcy trustee oversees the filing and execution of a Chapter 13 debtor’s plan. § 1322(a)(1); see also 28 U.S.C. § 586(a)(3). [I]f a trustee or an unsecured creditor objects to a Chapter 13 debtor’s plan, a bankruptcy court may not approve the plan unless it provides for the full repayment of unsecured claims or “provides that all of the debtor’s projected disposable income to be received” over the duration of the plan “will be applied to make payments” in accordance with the terms of the plan. 11 U.S.C. § 1325(b)(1); see also § 1326(b)(1) (2000 ed.). Id. at 2468-69. One of the many changes to the Code arising from the BAPCPA was the tightening of how a Chapter 13 debtor’s “projected disposable income” is calculated. Although “projected disposable income” remained an undefined term in the Code, the BAPCPA “specified in some detail how ‘disposable income’ is to be calculated.” Id. at 2469. “ ‘Disposable income’ is now defined as ‘current monthly income received by the debtor’ less ‘amounts reasonably necessary to be expended’ for the debtor’s maintenance and support, for qualifying charitable contributions, and for business expenditures. § 1325(b)(2)(A)(i) and (ii) (2006 ed.).” Id. “The phrase ‘amounts reasonably necessary to be expended’ in § 1325(b)(2) is ... newly defined” and how it is calculated depends on whether the debtor’s current monthly income is above or below the median for his or her state. Id. at 2470. The" }, { "docid": "18596980", "title": "", "text": "after-acquired estate property under § 1306(a) — for funding such plans. See, e.g., In re Hammonds, 23 B.R. 674, 675-77 (Bankr.M.D.Ga.1982) (pay order directing delivery to bankruptcy trustee of checks payable to pensioner-debtor in amounts required to fund Chapter 13 plan). We therefore do not accept the trustee’s contention that construing § 541(c)(2) to exclude from estate property pension interests subject to transfer restrictions flies in the face of Congress’ intention that pensioners should be able to use Chapter 13 proceedings. B. The trustee next contends that the anti-assignment requirements respecting pension fund interests imposed by ERISA, 29 U.S.C. § 1056(d)(1), and the Internal Revenue Code, 26 U.S.C. § 401(a)(13), have been repealed sub silento by Congress’ later enactment of the Bankruptcy Reform Act. Specifically the trustee urges that there are irreconcilable conflicts between the ER-ISA and IRC anti-assignment requirements on the one hand, and the expanded definition of estate property under § 541(a)(1), the exemption provisions of § 522(d)(10)(E), and the pay order authority of § 1325(b) of the later-enacted Bankruptcy Reform Act on the other. These irreconcilable conflicts, it is contended, require us to conclude that Congress has repealed by implication the ERISA and IRC requirements under the test of Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976) (repeal by implication may be found in two instances: irreconcilable conflict between provisions of earlier and later enactments; clearly intended complete supersession by later enactment of subject matter of earlier). Judicial determinations of repeals by implication are for obvious reasons disfavored, see Buren v. Social Security Administration, 725 F.2d 1080, 1085 (6th Cir.1984), and we do not find repeal here. Essentially, for reasons already largely explored, we find no such irreconcilable conflicts as would justify a finding of repeal under the Radzanower analysis. The expansion of the definition of estate property in § 541(a) of the Bankruptcy Reform Act essentially involved abandonment of the former concept that estate property included all items not subject to exemption. Under this definitional approach, as earlier indicated, we see no logical conflict between a" }, { "docid": "17997317", "title": "", "text": "of the estate under subsection (a)(1), (a)(2), or (a)(5) of this section notwithstanding any provision — (A) that restricts or conditions transfer of such interest by the debtor;” Consequently, this court holds that to the extent that the provisions of the Bankruptcy Code and ERISA conflict, Section 541(c)(1)(A) implicitly amends the normal anti-alienation provisions of ER-ISA. See Regan v. Ross, 691 F.2d 81, 87 (2d Cir.1982) (“to the extent Congress evidenced clear intent to include pension benefits in the property of a Chapter 13 estate” —a matter which the Ross court found to exist in an ERISA situation similar to the one before this court — “it necessarily amended § 401(a)(13) and applicable Treasury Regulations accordingly”). See also Clotfelter v. Ciba-Geigy Corp. (In re Threewitt), 20 B.R. 434, 439 (Bkrtcy.D.Kan.1982), rev’d 24 B.R. 927 (D.Kan.1982). Additionally, this court is not bound by the private letter ruling mentioned previously, 26 U.S.C. § 6110(i)(3) (1976), and in any event, this court does not agree with the position taken by the Internal Revenue Service therein. See Regan v. Ross, 691 F.2d at 87. Consequently, this court holds that an order by a bankruptcy court directing a pension plan to pay over a debtor’s interest in an ERISA plan to a Chapter 7 trustee does not disqualify a plan from receiving favorable tax treatment pursuant to Internal Revenue Code Section 401(a)(13). Moreover, this court recognizes that explicit exceptions to the anti-alienation provisions of ERISA plans have been carved out by courts in several areas, such as child support and alimony payments. See American Telephone & Telegraph Co. v. Merry, 592 F.2d 118, 121 (2d Cir.1979); Cody v. Riecker, 594 F.2d 314, 315 (2d Cir.1979), Another exception to the anti-alienation provision is found on the face of Internal Revenue Code Section 401(a)(13), which allows a “voluntary and revocable assignment of not to exceed 10 percent of any benefit payment... ”. See In re Wood, 23 B.R. 552, 559-60 (Bkrtcy.E.D.Tenn.1982). Defendant’s last argument is that if Section 541(c)(2) does not serve to except the pension plans in question, Section 522(b) will exempt them. Section 522(b)(2)(A) provides" }, { "docid": "18596979", "title": "", "text": "property some, but not all, of the employment benefits which, if included in estate property, might then be subject to exemption by the debtor under § 522(d)(10)(E). This construction, we believe, harmonizes the two sections while that urged by the trustee would effectively read out § 541(c)(2) in unwarranted deference to a misperceived conflict with § 522(d)(10)(E). Neither do we find persuasive the trustee’s related contention that a construction that excludes this pension interest from estate property, hence from the reach of a direct pay order, undercuts Congress’ expressed intention to make Chapter 13 proceedings available to pensioners. See H.R.Rep. No., 595, 95th Cong., 2d Sess. 312, reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6269. In the first place, pension benefits not subject to enforceable restrictions, hence to exclusions from estate property under § 541(c)(2), are of course directly available — by pay order if necessary — to fund pensioners’ Chapter 13 plans. And, as earlier indicated, a modest bit of creativity can make § 541(c)(2) — excluded pension fund interests available — as after-acquired estate property under § 1306(a) — for funding such plans. See, e.g., In re Hammonds, 23 B.R. 674, 675-77 (Bankr.M.D.Ga.1982) (pay order directing delivery to bankruptcy trustee of checks payable to pensioner-debtor in amounts required to fund Chapter 13 plan). We therefore do not accept the trustee’s contention that construing § 541(c)(2) to exclude from estate property pension interests subject to transfer restrictions flies in the face of Congress’ intention that pensioners should be able to use Chapter 13 proceedings. B. The trustee next contends that the anti-assignment requirements respecting pension fund interests imposed by ERISA, 29 U.S.C. § 1056(d)(1), and the Internal Revenue Code, 26 U.S.C. § 401(a)(13), have been repealed sub silento by Congress’ later enactment of the Bankruptcy Reform Act. Specifically the trustee urges that there are irreconcilable conflicts between the ER-ISA and IRC anti-assignment requirements on the one hand, and the expanded definition of estate property under § 541(a)(1), the exemption provisions of § 522(d)(10)(E), and the pay order authority of § 1325(b) of the later-enacted Bankruptcy Reform Act on" }, { "docid": "19281559", "title": "", "text": "the Debtor transferred half of sixty (60) annuity payments to Went-worth. The Debtor consummated the transaction with Wentworth, despite the language in paragraph 7(f) of the Settlement Agreement prohibiting him from selling or assigning his future rights to receive payments from CAC. On its face, the Purchase Agreement memorializes a sales transaction. As part of the deal, the Debtor promised to never claim ownership of the payments assigned to Wentworth. (Purchase Agreement at ¶ 5.a., p. 5). Moreover, the Debtor specifically (1) waived the restrictions on assigna-bility contained in the Settlement Agreement and (2) agreed to refrain from later contesting the issue of whether the settlement payments were properly assigned to Wentworth. (Id. at ¶¶ 4.j., 4.o., 5.e., pp. 4-5). From March 17, 1998 to October 1999, Wentworth received half of each of the Debtor’s $1,400 monthly payments. On September 27, 1999, the Debtor filed a Chapter 13 bankruptcy petition. In his schedules, the Debtor identified the full monthly value of the annuity ($1,400) as an estate asset and claimed it as exempt property. Schedule J reflects the Debtor’s monthly income. In calculating his monthly income, the Debtor included the full value of the annuity. Wentworth was listed as a secured creditor on Schedule D. Wentworth did not receive a payment in November 1999. Nonpayment, along with the Debtor’s treatment of the full value of the annuity as an estate asset, triggered Wentworth’s two objections. Wentworth rejects the notion that the full value of the annuity is estate property. Wentworth also contends that it is not a creditor of this estate. Instead, Wentworth claims outright ownership of a portion of the annuity. The ' Chapter 13 Trustee shares Wentworth’s view. In response, the Debtor contends, inter alia, that the annuity payments are estate property, by virtue of the fact that he was contractually prohibited under the Settlement Agreement from transferring or assigning them. Furthermore, he points out that the Settlement Agreement names CAC as the owner of the annuity. According to the Debtor, Wentworth cannot claim ownership of an annuity owned by CAC. Discussion At issue here is whether that" }, { "docid": "13606330", "title": "", "text": "is immaterial for present purposes. The Code anticipates both of these contingencies and captures the benefits in each case for the debtor’s estate. As property of the estate, the benefits may be used by the debtor, through the trustee, to pay claims under a Chapter 13 plan. The income deduction procedure at issue in this case is but a specific example of the bankruptcy court’s authority to issue whatever orders are “necessary or appropriate” to implement the Code. Under Chapter 13, the “future income of the debtor” is subject to such “supervision and control of the trustee as is necessary for the execution of the [repayment] plan.” 11 U.S.C. § 1322(a)(1). Income deduction orders may therefore be issued by the bankruptcy court to “any entity from whom the debtor receives income.” Id. § 1325(b). Section 541(c)(2) Exception The retirement systems nevertheless argue that the anti-assignment provision’s operation is saved by dint of 11 U.S.C. § 541(c)(2), which provides that “[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law” is enforceable in bankruptcy proceedings. We must reject the systems’ argument, however, because it would produce a result that runs counter to congressional intent as evinced by both specific legislative history and reasonable inferences drawn from other Code provisions. The legislative history of the new Code indicates that Congress intended to extend Chapter 13 relief to precisely the class of debtors involved in this case. In enacting the new Bankruptcy Code, Congress explicitly expanded the coverage of Chapter 13 to include pension and welfare recipients in addition to wage earners, who alone were covered under the old Act. See H.R.Rep.No.595, 95th Cong., 2d Sess. 312, reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6269 (Chapter 13 relief under new Code available to all individuals with income “sufficiently stable and regular” to enable them to make payments; individuals “on welfare, social security, [or] fixed pension incomes . .. will be able to work out repayment plans with their creditors rather than being forced into straight bankruptcy.”) See also S.Rep.No.989, 95th" }, { "docid": "1151775", "title": "", "text": "the debtor is given limited power to avoid such transfers, one limitation being that the transfer must have been involuntary, see 11 U.S.C. section 522(h) and (g)(1)(A). Thus, the trustee enjoys the full panoply of avoidance powers for the benefit of the estate and unsecured creditors, but the debtor’s access to such powers for his or her own benefit is limited to recovering exempt property from noncon-sensual liens and transfers. In Chapter 13, by contrast, the debtor may keep all his or her property, not just exempt property, and proposes a payment plan funded through future income, with the debtor making payments to the Chapter 13 trustee and the trustee making distributions to creditors according to the plan. See 11 U.S.C. sections 1306(b), 1321, and 1322(a)(1). Therefore, unlike a Chapter 7 trustee, a Chapter 13 trustee does not have the duty of collecting estate property and reducing it to money. Compare 11 U.S.C. section 1304(b)(1) with 11 U.S.C. section 704(1). Creditors are protected by the requirements that under the plan, unsecured creditors must fare at least as well as they would if the case were one under Chapter 7, see 11 U.S.C. section 1325(a)(4) (the “best interests of creditors” test), and secured creditors must retain their liens and receive the present value of their collateral through the plan, see 11 U.S.C. sections 506(a) and 1325(a)(5)(B). A Chapter 13 trustee’s compensation is based on a percentage of the payments received from the debtor. See 28 U.S.C. section 586(e) and 11 U.S.C. section 326(b). Thus, a Chapter 13 trustee does not have the same incentive to avoid transfers as a Chapter 7 trustee does. Chapter 13, however, also differs from Chapter 7 in the effect of lien avoidance on a debtor. In Chapter 7, if a lien is not avoided, a debtor wishing to retain tangible personal property serving as collateral must either reaffirm the entire debt (if the creditor is agreeable) or redeem the property by cash payment of its value. See 11 U.S.C. sections 524(c) and 722; In re Edwards, 901 F.2d 1383 (7th Cir.1990). By contrast, Chapter 13 allows" }, { "docid": "18724006", "title": "", "text": "all of the property, whereever located, of the debtor, as of the commencement of such case. As outlined below, the debtor’s right to receive disability benefits is property of the Chapter 13 estate. Such property is unquestionably within the jurisdiction of the United States Bankruptcy Court. Section 105(a) authorizes the Bankruptcy Court to issue orders “necessary and appropriate” to carrying out the provisions of the Chapter 13 plan. The plan herein calls for the payment of disability benefits to the Trustee for distribution to creditors. The Department cannot claim the immunity from income deduction orders which may have been available under prior law. As demonstrated in United States v. Krakover, 377 F.2d 104 (10th Cir. 1967), agencies of the United States government had realized some insulation from income deduction orders in Chapter 13 cases under prior law. In Krakover the 10th Circuit reasoned that § 658(2) of the prior Bankruptcy Act, 11 U.S.C. § 1058(2), limited the enforceability of income deduction orders in Chapter 13 cases to an “employer” other than the United States government. The language of § 1325(b) of the Code and the definitions contained in § 101 clearly overrule the immunity analysis in Krakover. Moreover, 11 U.S.C. § 106 specifically addresses the immunity issue as follows: Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity— (1) a provision in this title that contains “creditor,” “entity”, or “govern mental unit” applies to governmental units; . Congress, thus, contemplated a waiver of the principle of sovereign immunity of the United States at least to the extent of subjecting government agencies to income deduction orders as “entities” under § 1325(b). Congress contemplated that individuals receiving disability income could be debtors under Chapter 13 of the new Bankruptcy Code. An “individual with regular income” who otherwise meets the requirements of § 109(e) of the Code is eligible to be a debtor under Chapter 13. 11 U.S.C. § 109(e). Section 101(24) of the Code defines “individual with regular income” to mean: “. . . [an] individual whose income is sufficiently stable and regular" } ]

[ { "docid": "22139473", "title": "", "text": "July 13, 1987, for judicial review of the Secretary’s decision pursuant to 42 U.S.C. § 405(g). On November 4, 1991, the district court denied plaintiffs motion for summary judgment and granted judgment for the Secretary on the ground that the ALJ’s decision was based on substantial evidence. B. Statutory and Regulatory Framework In order to qualify for SSI benefits, a claimant-must be “disabled.” The Act defines “disabled” as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or. can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A “physical or mental impairment” is further defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 1382c(a)(3)(C). Social Security regulations outline a five-step inquiry to be followed in determining whether a claimant is disabled. 20 C.F.R. § 416.920(a)-(f). The Secretary must determine in sequence: (1) whether the claimant is currently employed;- (2) whether she has a severé impairment; (3) whether her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir.1992). Once the claimant has satisfied Steps One and' Two, she will automatically be found disabled if she suffers from a listed impairment. If. the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir.1984). C. Evidence Before the ALJ At the hearing, Pope testified that after her April, 1984, injury, she suffered’ from intermittent low back pain. She also stated that she experienced numbness in her legs after sitting or standing for prolonged periods, followed by severe pain and muscle spasms. She testified" } ]

[ { "docid": "7094993", "title": "", "text": "support a conclusion.” Bloodsworth, at 1239. STATUTORY AND REGULATORY FRAMEWORK In order to qualify for disability benefits and to establish his entitlement for a period of disability, a claimant must be disabled. The Act defines disabled as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.... ” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). For the purposes of establishing entitlement to disability benefits, “physical or mental impairment” is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). In determining whether a claimant is disabled, Social Security regulations outline a five-step sequential process. 20 C.F.R. § 404.1520(a)-(f). The Commissioner must determine in sequence: (1) whether the claimant is currently employed; (2) whether she has a severe impairment; (3) whether her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord McDaniel v. Bowen, 800 F.2d 1026,1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope, at 477; accord Foote v. Cha-ter, 67 F.3d 1553, 1559 (11th Cir.1995). In the instant case, the ALJ, Richard W. Gordon, determined the plaintiff met the first two tests, but concluded she did not suffer from a listed impairment. The ALJ found the plaintiff was able to perform her past relevant work, and accordingly, found her not disabled. THE STANDARD WHEN THE CLAIMANT TESTIFIES HE SUFFERS FROM PAIN OR" }, { "docid": "21412076", "title": "", "text": "because the evidence can support a contrary decision.” Gutierrez v. Apfel, 1998 WL 30690 at *3 (N.D.Ill. Jan.23, 1998); see also Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990) (“If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is substantial evidence.”) However, “if the [Commissioner] committed an error of law, reversal is required without regard to the volume of the evidence in support of the factual findings.” Imani v. Heckler, 797 F.2d 508, 510 (7th Cir.1986); cert denied, 479 U.S. 988, 107 S.Ct. 580, 93 L.Ed.2d 583 (1986). With these standards in mind, we address Schmidt’s challenge to the Commissioner’s disability determination. B. Disability To qualify for disability benefits, a claimant must be “disabled.” The Act defines “disabled” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A “physical or mental impairment” is an impairment resulting “from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). Social Security regulation^ set forth a five-step inquiry to determine whether a claimant is disabled. The Commissioner must determine (1) whether the claimant is presently employed; (2) whether he has a severe impairment; (3) whether his impairment meets or equals one of the Commissioner’s listed impairments; (4) whether the claimant can perform his past relevant work; and (5) whether he is capable of performing any work within the economy. 20 C.F.R. § 404.1520; Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir.1992). A claimant must always satisfy the first two factors, but a finding of disability results if he has a listed impairment or can do neither his previous work nor any other work. Schroeter, 977 F.2d at 393. In reviewing Schmidt’s claim, ALJ Kohler noted that Schmidt had not been gainfully employed since 1986. Turning to the" }, { "docid": "22559195", "title": "", "text": "more than a mere scintilla and less than a preponderance.” Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.1995) (internal quotations omitted); see also Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir.1987). The court does not reweigh the evidence in the record, try the issues de novo, or substitute its judgment for the Commissioner’s, even if the evidence weighs against the Commissioner’s decision. See Brown, 192 F.3d at 496. “Conflicts in the evidence are for the [Commissioner] and not the courts to resolve.” Id. (quoting Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.1990)). B. Standard for Entitlement to Social Security Benefits The claimant has the burden of proving she has a medically determinable physical or mental impairment lasting at least twelve months that prevents her from engaging in substantial gainful activity. See 42 U.S.C. § 423(d)(1)(A). Substantial gainful activity is defined as work activity involving significant physical or mental abilities for pay or profit. 20 C.F.R. § 404.1572(a) and (b). The ALJ uses a five-step sequential process to evaluate claims of disability and decides whether: (1) the claimant is not working in substantial gainful activity; (2) the claimant has a severe impairment; (3) the claimant’s impairment meets or equals a listed impairment in Appendix 1 of the Regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from doing any other work. 20 C.F.R. § 404.1520. The claimant bears the burden of proof on the first four steps and the burden shifts to the Commissioner for the fifth step. Thus, the claimant must show first that she is no longer capable of performing her past relevant work. 20 C.F.R. § 404.1520(e). If the claimant satisfies this burden, then the Commissioner must show that the claimant is capable of engaging in some type of alternative work that exists in the national economy. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir.1987). Once the Commissioner makes this showing, the burden of proof shifts back to the claimant to rebut this finding. Id. III. DISCUSSION In her appeal from the final" }, { "docid": "23138988", "title": "", "text": "1038 (2d Cir.1983) (per curiam). “We undertake a plenary review of the administrative record, and our focus is on the administrative ruling more than on the district court’s decision.” Lamay, 562 F.3d at 507. II. Eligibility Standard for SSI Disability Benefits To be eligible for SSI benefits, an applicant must show that “by reason of any medically determinable physical or mental impairment” resulting from “anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques,” she is “not only unable to do [her] previous work” but also prevented from “engaging] in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3). SSA regulations prescribe a five-step process for evaluating disability claims: First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Commissioner next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him [per se ] disabled____Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Commissioner then determines whether there is other work which the claimant could perform. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir.1998) (internal alterations omitted). The applicant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last. Id. “Mental retardation” is listed as a per se disability in Appendix 1 of the relevant SSA regulations. See 20 C.F.R. Pt. 404, Subpt. P, App’x 1, Part A, § 12.00. Under SSA regulations, a petitioner suffers from mental retardation if she exhibits: [Significantly subaverage general intellectual functioning" }, { "docid": "8299358", "title": "", "text": "a conclusion.” Bloodsworth, at 1239. STATUTORY AND REGULATORY FRAMEWORK In order to qualify for disability benefits and to establish her entitlement for a peri od of disability, a claimant must be disabled. The Act defines disabled as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.... ” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(1). For the purposes of establishing entitlement to disability benefits, physical or mental impairment is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). In determining whether a claimant is disabled, Social Security regulations outline a five-step sequential process. 20 C.F.R. § 404.1520(a)-(f). The Commissioner must determine in sequence: (1) whether the claimant is currently employed; (2) whether she has a severe impairment; (3) whether her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope at 477; accord Foote v. Chafer, 67 F.3d 1553, 1559 (11th Cir.1995). The Commissioner further bears the burden of showing that such work exists in the national economy in significant numbers. Id. In the instant case, ALJ Russell W. Lewis determined the plaintiff met the first two tests, but concluded that while she has an impairment or impairments considered “severe,” she did not suffer from a listed impairment." }, { "docid": "7094994", "title": "", "text": "her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord McDaniel v. Bowen, 800 F.2d 1026,1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope, at 477; accord Foote v. Cha-ter, 67 F.3d 1553, 1559 (11th Cir.1995). In the instant case, the ALJ, Richard W. Gordon, determined the plaintiff met the first two tests, but concluded she did not suffer from a listed impairment. The ALJ found the plaintiff was able to perform her past relevant work, and accordingly, found her not disabled. THE STANDARD WHEN THE CLAIMANT TESTIFIES HE SUFFERS FROM PAIN OR OTHER SUBJECTIVE SYMPTOMS In this circuit, “a three part ‘pain standard’ [is applied] when a claimant seeks to establish disability through his or her own testimony of pain or other subjective symptoms.” Foote, at 1560. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. Foote, at 1560 (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991). In this circuit medical evidence of pain itself, or of its intensity, is not required. While both the regulations and the Hand standard require objective medical evidence of a condition that could reasonably be expected to cause the pain alleged, neither requires objective proof of the pain itself Thus under both the regulations and the first (objectively identifiable condition) and third (reasonably expected to cause pain alleged) parts of the Hand standard" }, { "docid": "18321943", "title": "", "text": "a conclusion.” Bloodsworth, at 1239. STATUTORY AND REGULATORY FRAMEWORK In order to qualify for disability benefits and to establish her entitlement for a period of disability, a claimant must be disabled. The Act defines disabled as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.... ” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(1). For the purposes of establishing entitlement to disability benefits, physical or mental impairment is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). In determining whether a claimant is disabled, Social Security regulations outline a five-step sequential process. 20 C.F.R. § 404.1520(a)-(f). The Commissioner must determine in sequence: (1) whether the claimant is currently employed; (2) whether she has a severe impairment; (3) whether her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord McDaniel v. Bowen, 800 F.2d 1026,1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope at 477; accord Foote v. Chater, 67 F.3d 1653, 1559 (11th Cir.1995). The Commissioner further bears the burden of showing that such work exists in the national economy in significant numbers. Id. In the instant case, ALJ Jerry C. Shirley determined the plaintiff met the first two tests, but concluded that while she has an impairment or impairments considered “severe,” she did not suffer from a listed impairment. The ALJ" }, { "docid": "22477609", "title": "", "text": "II DISCUSSION Under the relevant statute, to be disabled means to be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be ex pected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A physical impairment is “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 1382e(a)(3)(C). The Social Security regulations provide a five-step inquiry to determine whether a claimant is disabled: (1) whether the claimant is currently employed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals one of the impairments listed by the SSA, see 20 C.F.R. § 404, Subpt. P, App. 1; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing work in the national economy. See 20 C.F.R. § 404.1520; Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir.1994); Binion v. Shalala, 13 F.3d 243, 247 (7th Cir.1994). If a claimant satisfies steps one, two, and three, she will automatically be found disabled. If a claimant satisfies steps one and two, but not three, then she must satisfy step four. Once step four is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing work in the national economy. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); Lee v. Sullivan, 988 F.2d 789, 792 (7th Cir.1992). The ALJ determined that Ms. Knight was not currently employed and that, although she had a severe impairment, it was neither among, nor equivalent to, those listed by the SSA. The ALJ then determined, based on the physicians’ reports and Ms. Knight’s testimony, that Ms. Knight could still do the type of clerical work she had done in the past. Accordingly, he found her to be not disabled. See 20 C.F.R. § 404.1520(e). A. Substantial Evidence Ms. Knight first argues" }, { "docid": "8299359", "title": "", "text": "her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope at 477; accord Foote v. Chafer, 67 F.3d 1553, 1559 (11th Cir.1995). The Commissioner further bears the burden of showing that such work exists in the national economy in significant numbers. Id. In the instant case, ALJ Russell W. Lewis determined the plaintiff met the first two tests, but concluded that while she has an impairment or impairments considered “severe,” she did not suffer from a listed impairment. The ALJ found the plaintiff unable to perform her past relevant work. Once it is determined that the plaintiff cannot return to her prior work, “the burden shifts to the [Commissioner] to show other work the claimant can do.” Foote, at 1559. Furthermore, when, as is the case here, a claimant is not able to perform the full range of work at a particular exertional level, the Commissioner may not exclusively rely on the Medical-Vocational Guidelines (the grids). Foote, at 1558-59. The presence of a non-exertional impairment, pain, also prevents exclusive reliance on the grids. Foote, at 1559. In such cases “the [Commissioner] must seek expert vocational testimony.” Foote, at 1559. THE STANDARD WHEN THE CLAIMANT TESTIFIES SHE SUFFERS FROM DISABLING PAIN In this circuit, “a three part ‘pain standard’ [is applied] when a claimant seeks to establish disability through his or her own testimony of pain or other subjective symptoms.” Foote, at 1560. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity" }, { "docid": "15145803", "title": "", "text": "whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. . Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope, at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir.1995). In the instant case, the ALJ, Jerry C. Shirley, determined the plaintiff met the first two tests, but concluded she did not suffer from a listed impairment. The ALJ found the plaintiff was able to perform her past relevant work, and accordingly found her not disabled. THE STANDARD WHEN THE CLAIMANT TESTIFIES HE SUFFERS FROM PAIN OR OTHER SUBJECTIVE SYMPTOMS In this circuit, “a three part ‘pain standard’ [is applied] when a claimant seeks to establish disability through his or her own testimony of pain or other subjective symptoms.” Foote, at 1560. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. Foote, at 1560 (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991)). In this circuit medical evidence of pain itself, or of its intensity, is not required. While both the regulations and the Hand standard require objective medical evidence of a condition that could reasonably be expected to cause the pain alleged, neither requires objective proof of the pain itself Thus under both the regulations and the first (objectively identifiable condition) and third (reasonably expected to cause pain alleged) parts of the Hand standard a claimant who can show that his condition could" }, { "docid": "22404585", "title": "", "text": "provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal. Id. Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir.1983). 2. Applicable Regulations To qualify for supplemental security income, a claimant must be “under a disability,” which is defined in 42 U.S.C. § 1382c(a)(3)(A) as the inability: ... to engage in any substantial gainful activity by reason of any medical determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. “Physical or mental impairment” is defined in 42 U.S.C. § 1382c(a)(3)(C) as: ... an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. Pursuant to the Act, the Secretary has issued regulations describing a five-step sequence to be followed in determining whether a claimant is entitled to supplemental security income (SSI): (1) Is the claimant . presently unemployed? (2) Is the claimant's impairment severe? (3) Does the claimant’s impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.” 20 C.F.R. § 416.920(aHf). McDaniel’s burden in her claim for supplemental security income is to show that she meets the financial need requirement, that she is presently unemployed, that her impairment is “severe” within the meaning of the Act, and that she has no “former occupation.” She may have the opportunity to prove that she has a listed impairment, automatically entitling her to disability benefits. 3. Issues in this Case It is clear from the record that McDaniel met step" }, { "docid": "18321944", "title": "", "text": "impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord McDaniel v. Bowen, 800 F.2d 1026,1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope at 477; accord Foote v. Chater, 67 F.3d 1653, 1559 (11th Cir.1995). The Commissioner further bears the burden of showing that such work exists in the national economy in significant numbers. Id. In the instant case, ALJ Jerry C. Shirley determined the plaintiff met the first two tests, but concluded that while she has an impairment or impairments considered “severe,” she did not suffer from a listed impairment. The ALJ found the plaintiff unable to perform her past relevant work. Once it is determined that the plaintiff cannot return to her prior work, “the burden shifts to the [Commissioner] to show other work the claimant can do.” Foote, at 1559. Furthermore, when, as is the case here, a claimant is not able to perform the full range of work at a particular exertional level, the Commissioner may not exclusively rely on the Medical-Vocational Guidelines (the grids). Foote, at 1558-59. The presence of a non-exertional impairment, pain, also prevents exclusive reliance on the grids. Foote, at 1559. In such cases “the [Commissioner] must seek expert vocational testimony.” Foote, at 1559. THE STANDARD WHEN THE CLAIMANT TESTIFIES SHE SUFFERS FROM DISABLING PAIN In this circuit, “a three part ‘pain standard’ [is applied] when a claimant seeks to establish disability through his or her own testimony of pain or other subjective symptoms.” Foote, at 1560. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the" }, { "docid": "1384158", "title": "", "text": "Statutory and Regulatory Framework In order to qualify for disability benefits and to establish her entitlement for a period of disability, a claimant must be disabled as that term is defined by the Social; Security Act and the Regulations promulgated thereunder. The Regulations define disabled as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months .... ” 20 CFR 404.1505(a). For the purposes of establishing entitlement to disability benefits, physical or mental impairment is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are de monstrable by medically acceptable clinical and laboratory diagnostic techniques.” 20 CFR 404.1508. In determining whether a claimant is disabled, Social Security regulations outline a five-step sequential process. 20 CFR 404.1520(a)(4)(i-v). The Commissioner must determine in sequence: (1) whether the claimant is currently employed; (2) whether she has a severe impairment; (3) whether her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord, McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope, at 477; accord, Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir.1995). The Commissioner also bears the burden of showing that such work exists in the national economy in significant numbers. Id. Findings of the ALJ In the instant case, the ALJ, Cynthia Brown, determined the plaintiff met the first two prongs of the eligibility test. The ALJ concluded that plaintiffs impairments-morbid obesity, degenerative" }, { "docid": "6575074", "title": "", "text": "and the objective medical evidence, the ALJ concluded that Plaintiff retained the ability to perform medium work activity. (R. at 23). Next, the ALJ determined Plaintiff had no past relevant work to which she could return. (Id). Last, the ALJ acknowledged that the vocational expert had identified a number of jobs existing in significant numbers in the national economy that someone with Plaintiffs limitations could perform. (Id). Thus, the ALJ found Plaintiff not to be disabled within the meaning of the Act. (R. at 24). IV. Standard of Review To be eligible for disability benefits under the Act, a claimant must demonstrate to the Commissioner that she cannot engage in substantial gainful activity because of a medically determinable physical or mental impairment, which has lasted or can be expected to last for a continuous period of at least twelve months, or which can be expected to result in death. 42 U.S.C. § 423(d)(1)(A); Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir.1999) (citing Stunkard v. Sec’y of Health and Human Servs., 841 F.2d 57, 59 (3d Cir.1988); see also Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir.1986)). To determine whether a claimant has met the requirements for disability, the Commissioner must utilize a five-step sequential analysis in reviewing the claim. 20 C.F.R. §§ 404.1520, 416.920. The Commissioner must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or a combination of impairments that is severe; (3) whether the medical evidence of the claimant’s impairment or combination of impairments meets or equals the criteria listed in 20 C.F.R. Pt. 404, Subpt. P, App’x. 1; (4) whether the claimant’s impairments prevent her from performing past relevant work; and (5) if the claimant is incapable of performing her past relevant work, whether she can perform any other work which exists in the national economy. 20 C.F.R. § 404.1520(a)(4); see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003). If the claimant is determined to be unable to resume past relevant work, the burden shifts" }, { "docid": "1384159", "title": "", "text": "severe impairment; (3) whether her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord, McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope, at 477; accord, Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir.1995). The Commissioner also bears the burden of showing that such work exists in the national economy in significant numbers. Id. Findings of the ALJ In the instant case, the ALJ, Cynthia Brown, determined the plaintiff met the first two prongs of the eligibility test. The ALJ concluded that plaintiffs impairments-morbid obesity, degenerative joint disease, hypertension, non-insulin dependent diabetes, and a history of carpal tunnel syndrome-were severe but did not meet or equal a listed impairment. The ALJ found that the plaintiff was unable to perform her past relevant work. The ALJ further found that Ms. Davis has the residual functional capacity to perform a significant range of light and sedentary work with limitations. Facts and Procedural History Ms. Davis filed her application for Social Security benefits on October 25, 2002, alleging an amended onset date of November 6, 2002. She was forty-nine years old at the time of the administrative hearing. She has a tenth grade education. Her past relevant work experience is as a fast food cook, cashier, and kitchen helper. The plaintiff claimed disability because of back pain, numbness in her feet and legs, insomnia, diabetes, hypertension, and gout. The Social Security Administration denied benefits initially and upon reconsideration. On March 19, 2004, after an administrative hearing, ALJ Cynthia Brown denied benefits as well. The Appeals Council denied plaintiffs request for review on November 23," }, { "docid": "22766882", "title": "", "text": "establish eligibility for social security DIB and SSI, a claimant has the burden of demonstrating that he or she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (2000 Cum. Annual Pocket Part); 20 C.F.R. § 416.905(a) (1999). To determine whether a claimant is entitled to disability benefits, the Commissioner applies a sequential five-step inquiry pursuant to 20 C.F.R. § 404.1520. [T]he [Commissioner] determines first whether an individual is currently engaged in substantial gainful activity. If that individual is engaged in substantial gainful activity, he [or she] will be found not disabled regardless of the medical findings. If an individual is found not to be engaged in substantial gainful activity, the [Commissioner] will determine whether the medical evidence indicates that the claimant suffers from a severe impairment. If the [Commissioner] determines that the claimant suffers from a severe impairment, the [Commissioner] will next determine whether the impairment meets or equals a list of impairments in Appendix I of sub-part P of Regulations No. 4 of the Code of Regulations. If the individual meets or equals the list of impairments, the claimant will be found disabled. If he [or she] does not, the [Commissioner] must determine if the individual is capable of performing his [or her] past relevant work considering his [or her] severe impairment. If the [Commissioner] determines that the individual is not capable of performing his [or her] past relevant work, then he must determine whether, considering the claimant’s age, education, past work experience and residual functional capacity, he [or she] is capable of performing other work which exists in the national economy. Brewster v. Heckler, 786 F.2d 581, 583-84 (3d Cir.1986) (internal citations omitted). The claimant bears the burden of establishing that he or she is incapable of performing his or her past relevant work due to a physical or mental impairment. See Kent v. Schweiker," }, { "docid": "22841614", "title": "", "text": "§ 423(a)(1)(D). The Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is in turn defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). The suffering of some impairment does not establish disability; a claimant is disabled only if she is “incapable of engaging in any substantial gainful activity.” Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir.1986). The claimant has the burden to prove that she is disabled within the meaning of the Social Security Act. Fraga v. Bowen, 810 F.2d 1296, 1301 (5th Cir.1987). Pursuant to the express authorization of Congress, the Secretary has promulgated a five-step sequential evaluation process to determine whether a claimant is disabled: (1) If the claimant is presently working, a finding of “not disabled” must be made; (2) if the claimant does not have a “severe impairment” or combination of impairments, she will not be found disabled; (3) if the claimant has an impairment that meets or equals an impairment listed in Appendix 1 of the Regulations, disability is presumed and benefits are awarded; (4) if the claimant is capable of performing past relevant work, a finding of “not disabled” must be made; and (5) if the claimant’s impairment prevents her from doing any other substantial gainful activity, taking into consideration her age, education, past work experience and residual functional capacity, she will be found disabled. 20 C.F.R. §§ 404.-1520, 416.920; Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir.1991). A finding that the claimant is disabled or is not disabled at any point in the five-step review terminates the analysis. Johnson v. Bowen, 851 F.2d 748, 751 (5th Cir.1988). The second step of the Secretary’s sequential analysis, which is here challenged, requires that" }, { "docid": "15577908", "title": "", "text": "any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Commissioner uses a five-step evaluation process to determine when an individual meets this definition. See 20 C.F.R. § 404.1520. In Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.1999), the Third Circuit set forth the process as follows: In step one, the Commissioner must determine whether the claimant is current ly engaging in substantial gainful activity. If a claimant is found to be engaged in substantial activity, the disability claim will be denied. In step two, the Commissioner must determine whether the claimant is suffering from a severe impairment. If the claimant fails to show that her impairments are “severe,” she is ineligible for disability benefits. In step three, the Commissioner compares the medical evidence of the claimant’s impairment to a list of impairments presumed severe enough to preclude any gainful work. If a claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five. Step four requires the ALJ to consider whether the claimant retains the residual functional capacity to perform her past relevant work. The claimant bears the burden of demonstrating an inability to return to her past relevant work. If the claimant is unable to resume her former occupation, the evaluation moves to the final step. At this stage, the burden of production shifts to the Commissioner, who must demonstrate the claimant is capable of performing other available work in order to deny a claim of disability. The ALJ must show there are other jobs existing in significant numbers in the national economy the claimant can perform, consistent with her medical impairments, age, education, past work experience, and residual functional capacity. The ALJ must analyze the cumulative effect of all the claimant’s impairments in determining whether she is capable of performing work and is not disabled. The ALJ will often seek the" }, { "docid": "20061220", "title": "", "text": "of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). An individual’s physical or mental impairment is not disabling under the Act unless it is “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. § 1382c(a)(3)(B). The Commissioner has promulgated regulations establishing a five-step procedure for evaluating disability claims. See 20 C.F.R §§ 404.1520(a)(4), 416.920. The Second Circuit has summarized this procedure as follows: The first step of this process requires the [Commissioner] to determine whether the claimant is presently employed. If the claimant is not employed, the [Commissioner] then determines whether the claimant has a “severe impairment” that limits her capacity to work. If the claimant has such an impairment, the [Commissioner] next considers whether the claimant has an impairment that is listed in Appendix 1 of the regulations. When the claimant has such an impairment, the [Commissioner] will find the claimant disabled. However, if the claimant does not have a listed impairment, the [Commissioner] must determine, under the fourth step, whether the claimant possesses the residual functional capacity to perform her past relevant work. Finally, if the claimant is unable to perform her past relevant work, the [Commissioner] determines whether the claimant is capable of performing any other work. Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996)). The claimant bears the burden of proof with regard to the first four steps; the Commissioner bears the burden of proving the last step. Brown, 174 F.3d at 62. The Commissioner must consider the following in determining a claimant’s entitlement to benefits: “(1) the objective medical facts [and clinical findings]; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability ...; and (4)" }, { "docid": "15145802", "title": "", "text": "“such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Bloodsworth, at 1239. STATUTORY AND REGULATORY FRAMEWORK In order to qualify for SSI benefits, a claimant must be “disabled.” The Act defines “disabled” as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A “physical or mental impairment” is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 1382c(a)(3)(C). In determining whether a claimant is disabled, Social Security regulations outline a five-step sequential process. 20 C.F.R. § 416.920(a)-(f). The Commissioner must determine in sequence: (1) whether the claimant is currently employed; (2) whether she has a severe impairment; (3) whether her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. . Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.1986). “Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job.” Pope, at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir.1995). In the instant case, the ALJ, Jerry C. Shirley, determined the plaintiff met the first two tests, but concluded she did not suffer from a listed impairment. The ALJ found the plaintiff was able to perform her past relevant work, and accordingly found her not disabled. THE STANDARD WHEN THE CLAIMANT TESTIFIES HE SUFFERS FROM PAIN OR OTHER SUBJECTIVE SYMPTOMS In this circuit, “a three part" } ]

[ { "docid": "23060156", "title": "", "text": "credit. He stated that a copy of Brown’s order from the sentencing judge, ordering sentence credit for the 306 days, had been forwarded to the Bureau’s General Counsel. He also explained that the Bureau was pursuing a court appeal of the issues Brown had raised. Brown did not pursue the second and third steps of the administrative procedure. Instead, he filed this petition for a writ of habeas corpus, pro se, in August, 1987. The district court dismissed his petition on the merits. Brown now appeals. DISCUSSION A. JURISDICTION; EXHAUSTION OF ADMINISTRATIVE REMEDIES We must address a threshold jurisdictional issue before we turn to the merits. Brown’s failure completely to exhaust the Bureau’s three-part grievance procedure does not divest us of jurisdiction. The requirement that federal prisoners exhaust administrative remedies before filing a ha-beas corpus petition was judicially created; it is not a statutory requirement. See Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985); Montgomery v. Rumsfeld, 572 F.2d 250, 252 (9th Cir.1978). Because exhaustion is not required by statute, it is not jurisdictional. Morrison-Knudsen Co., lnc. v. CHG Int’l, Inc., 811 F.2d 1209, 1223 (9th Cir.1987), cert. dismissed, — U.S. -, 109 S.Ct. 358, 102 L.Ed.2d 349 (1988); Montgomery, 572 F.2d at 252. Accord Harris v. Martin, 792 F.2d 52, 54 n. 2 (3d Cir.1986) (court reached the merits despite petitioner’s failure to exhaust his administrative remedies, implying that the exhaustion requirement is not jurisdictional); Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983). Where exhaustion of administrative remedies is not jurisdictional, the district court must determine whether to excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court. Because the government did not cross appeal on any grounds, and did not otherwise discuss this issue in its brief or argument, we need not review the district court’s finding that exhaustion was excused in this case. See Miller v. Fairchild" } ]

[ { "docid": "2768099", "title": "", "text": "committed; and that he had made a “very poor institutional adjustment and received numerous misconduct reports.” Joint Appendix at 290. Having thus exhausted his administrative remedies, Lynch filed the instant petition for a writ of habeas corpus in the Southern District of New York. Judge Broderick granted the writ subject to an order that the Commission conduct a new parole hearing in Lynch’s case, directing specifically that the Commission apply the parole guidelines that were in effect prior to September, 1981, and that the Commission render a decision no more severe than that recommended by the Examiners unless additional factors not considered by the Examiners were stated. The Commission filed a timely notice of appeal, and argues that its original determination, continuing Lynch to a reconsideration hearing in 1991, should be reinstated. According to the Commission, it adequately considered the status of Lynch’s co-defendants; did not deprive Lynch of due process by relying upon, yet failing to disclose to counsel Lynch’s pre-sentence report; did not deprive Lynch of due process by delaying his parole hearing; and with or without new or additional evidence was not required to abide by the recommendation of the Examiners. In response, Lynch challenges each of these arguments and additionally claims that because a new hearing has been held, in compliance with the district court’s order, this appeal is now moot. We turn now to these contentions. Discussion We reject Lynch’s claim that this appeal is moot. The Commission diligently, but unsuccessfully, applied for stays pending appeal both in the district court and in this Court. The applications failing, it held the hearing ordered by the district court, but on the present appeal asserts that its original determination of Lynch’s case was proper in all respects, and that the district court erred in requiring a new hearing to be held. The Commission also challenges the terms under which the hearing was to be held, namely, that the parole guidelines in effect before September 1981 were to be applied, and that reasons not already considered by the Examiners must be proffered to support any deviation from the" }, { "docid": "22450404", "title": "", "text": "PER CURIAM: Joel Fuller appeals the district court’s dismissal of his petition for a writ of habeas corpus for failure to exhaust administrative remedies. According to Fuller, he cannot file an administrative appeal because he did not receive notice of the Parole Commission’s decision until the time for filing such an appeal had elapsed. See 28 C.F.R. § 2.26 (1993) (an appeal to the National Appeals Board must be made within 30 days from the date of entry of the decision). A prisoner challenging a Parole Commission decision is required to exhaust his administrative remedies before seeking habeas relief in federal court under 28 U.S.C. § 2241. See Smith v. Thompson, 937 F.2d 217, 219 (5th Cir.1991). The district court’s dismissal of Fuller’s petition for failure to exhaust administrative remedies is reviewed for abuse of discretion. DCP Farms v. Yeutter, 957 F.2d 1183, 1188 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 406, 121 L.Ed.2d 331 (1992). “Exceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir.1985). However, exceptions to the exhaustion requirement apply only in “extraordinary circumstances,” Yeutter, 957 F.2d at 1189, and Fuller bears the burden of demonstrating the futility of administrative review. See Gardner v. School Bd. Caddo Parish, 958 F.2d 108, 112 (5th Cir.1992). Athough the exhaustion doctrine does not require that the National Appeals Board actually rule on the merits of Fuller’s claims, it does require that Fuller present the claims to the Board, thereby giving it an opportunity to review the decision reached by the Parole Commission. See Talerico v. Warden, U.S. Penitentiary, 391 F.Supp. 193, 195 (M.D.Pa.1975). Accordingly, before Fuller may seek relief in federal court, he must file an appeal with the National Appeals Board. We require Fuller to take this further step because until he actually appeals and that appeal is acted on, we do not know what the appeals board will" }, { "docid": "7441725", "title": "", "text": "issues on appeal at the administrative level. Townsend v. United States Department of Justice INS, 799 F.2d 179, 180 (5th Cir.1986); see also Witter v. INS, 113 F.3d 549, 554 (5th Cir.1997). The Government argues that Defendant failed to exhaust his administrative remedies because Defendant did not seek judicial review of the BIA’s decision, either by appealing this decision to the Fifth Circuit or by filing a habeas petition pursuant to 28 U.S.C. § 2241. The Court is of the opinion that Defendant exhausted his administrative remedies by appealing the IJ’s decision to the BIA. Because Defendant was only required to raise his appeal at the administrative level, Defendant was not required to appeal to the Fifth Circuit or file a habeas petition. In any event, it appears that at the time of Defendant’s appeal, the Fifth Circuit’s opinion in Camacho-Marro-quin was still in effect. Camacho-Marro- quin, 188 F.3d 649, 652, opinion withdrawn Camacho-Marroquin, 222 F.3d 1040 (holding that a felony DWI in Texas was a “crime of violence” and therefore an aggravated felony under IIRIRA) A habe-as petition would have also been futile because the Fifth Circuit held that the federal courts did not have habeas jurisdiction under IIRIRA. See Max-George, 205 F.3d at 197-98. 4. Actual Prejudice Finally, Defendant must show that he suffered actual prejudice as a result of the IJ’s erroneous interpretation of the law. “The law is clearly established that a showing of actual prejudice is required to succeed in such a collateral attack.” Benitez-Villafuerte, 186 F.3d at 658; see also United States v. Encarnacion-Galvez, 964 F.2d at 407. “A showing of prejudice means ‘there was a reasonable likelihood that but for the errors complained of the defendant would not have been deported.’ ” Benitez-Villafuerte, 186 F.3d at 658-59 (citations omitted); see also United States v. Lopez-Vasquez, 227 F.3d 476 (5th Cir.2000) (upholding the district court’s ruling that the defendant failed to prove actual prejudice by not demonstrating that the defendant was eligible for voluntary departure). “In short, ‘[i]f the defendant was legally deportable and, despite the INS’s errors, the proceeding ‘could not have yielded" }, { "docid": "8864840", "title": "", "text": "require petitioner to attend and complete the Commonwealth Psychological Associate/Corrections Drug Abuse Program. On September 5, 1989, petitioner was placed in custody for parole violation. A preliminary revocation hearing was held on September 27,1989, and continued on October 25, 1989. At the conclusion of the hearing the administrative law judge found probable cause to believe that petitioner had violated the conditions of his parole by failing to complete his CPA Drug Treatment Program. Based upon this finding, the Kentucky Parole Board issued a parole violation warrant. Petitioner’s final parole revocation hearing was held before the Parole Board on November 28, 1989. Petitioner’s parole was revoked on the grounds of his failure to attend and complete the drug treatment program in violation of the conditions of his parole. Petitioner first challenged the revocation of his parole in Oldham Circuit Court. That court denied relief and dismissed the action on February 12,1990. Petitioner then filed a motion for writ of habeas corpus in the Fay-ette Circuit Court. The Fayette Circuit Court dismissed the action by order dated March 8, 1990. The Kentucky Court of Appeals affirmed the order of the Fayette Circuit Court on April 11,1990. Petitioner then filed the present petition for writ of habeas corpus in federal district court. The district court held that petitioner had failed to exhaust his available state remedies prior to filing his petition for writ of habeas corpus in federal court. The district court also addressed petitioner’s claims, finding them to be without merit. This appeal followed. II. A state prisoner is ordinarily required to exhaust his state remedies prior to raising claims in federal habeas corpus proceedings. 28 U.S.C. § 2254(b), (c); Manning v. Alexander, 912 F.2d 878, 880-81 (6th Cir.1990). “The exhaustion requirement is satisfied when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner’s claims.” Id. (citations omitted). In this case it is undisputed that petitioner did not present his claims to the Kentucky Supreme Court. Rather, petitioner maintains that under the state supreme court’s decision" }, { "docid": "7441724", "title": "", "text": "IJ’s determination “unavailable.” The IJ held that Defendant had been convicted of an aggravated felony and that he was not eligible for Cancellation of Removal. Defendant appealed this decision to the BIA, which affirmed the IJ’s decision. Although Defendant technically received some direct review of his removal proceedings, the review the Defendant received was not “meaningful” because both the IJ and the BIA decisions, which were effectively overruled by Chapar-Garza, applied an erroneous interpretation of the law. Furthermore, Defendant was unable to obtain habeas relief because at that time, the Fifth Circuit concluded that IIRIRA stripped the federal courts of habeas jurisdiction under 28 U.S.C. § 2241. See Max-George v. Reno, 205 F.3d 194, 197-98 (5th Cir.2000), vacated Max-George v. Ashcroft, — U.S. -, 121 S.Ct. 2585, 150 L.Ed.2d 746 (2001). 3. Exhaustion of Administrative Remedies Defendant must demonstrate that he “exhausted any administrative remedies that may have been available to seek relief against the order.” 8 U.S.C.A. § 1326(d). The Fifth Circuit has held that to exhaust administrative remedies, an immigrant must raise the issues on appeal at the administrative level. Townsend v. United States Department of Justice INS, 799 F.2d 179, 180 (5th Cir.1986); see also Witter v. INS, 113 F.3d 549, 554 (5th Cir.1997). The Government argues that Defendant failed to exhaust his administrative remedies because Defendant did not seek judicial review of the BIA’s decision, either by appealing this decision to the Fifth Circuit or by filing a habeas petition pursuant to 28 U.S.C. § 2241. The Court is of the opinion that Defendant exhausted his administrative remedies by appealing the IJ’s decision to the BIA. Because Defendant was only required to raise his appeal at the administrative level, Defendant was not required to appeal to the Fifth Circuit or file a habeas petition. In any event, it appears that at the time of Defendant’s appeal, the Fifth Circuit’s opinion in Camacho-Marro-quin was still in effect. Camacho-Marro- quin, 188 F.3d 649, 652, opinion withdrawn Camacho-Marroquin, 222 F.3d 1040 (holding that a felony DWI in Texas was a “crime of violence” and therefore an aggravated felony under" }, { "docid": "8099167", "title": "", "text": "in the disputed presentence report. Appellant’s counsel informed the district court on June 13, 1980 of the events that had transpired at the June 12 hearing. The Commission responded, stating that it continued Arias’ case until August, 1980 in order to obtain new information concerning the presentence report. The Commission argued that appellant’s petition for a writ of habeas corpus should be dismissed pending exhaustion of administrative remedies. In an order and opinion of July 28, 1980, the district court declined to dismiss appellant’s petition on exhaustion grounds and reached the merits of his claim. The court granted Arias’ writ to the extent that it ordered the Commission to grant Arias a new initial parole hearing on its August, 1980 docket. The court held that the Commission could consider Arias’ presentence report when determining the severity of his offense pursuant to 28 C.F.R. § 2.20 (1980). It admonished the Commission, however, that a decision to detain appellant for a term beyond that suggested by the guidelines could not be based solely on the amount of heroin involved in his offense. This appeal followed. II. The threshold question in this appeal is whether the district court should have dismissed appellant’s petition for writ of habeas corpus because of his failure to exhaust administrative remedies. The Commission argues that the district court should have stayed consideration of Arias’ petition pending completion of the parole hearing scheduled for August, 1980. While we agree that the district court erred in reaching the mer its of Arias’ petition during the pendency of administrative proceedings, subsequent administrative action by the Commission has rendered any error harmless. A federal prisoner ordinarily may not challenge a parole decision until he has exhausted all available administrative remedies. United States ex rel. Caruso v. United States Board of Parole, 570 F.2d 1150, 1152 (3d Cir.) cert. denied, 436 U.S. 911, 98 S.Ct. 2249, 56 L.Ed.2d 411 (1978); United States ex rel. Sanders v. Arnold, 535 F.2d 848, 850 (3d Cir. 1976). We have adhered to the exhaustion doctrine for several reasons: (1) judicial review may be facilitated by allowing the" }, { "docid": "23668172", "title": "", "text": "where a plaintiff challenges a federal regulation under the APA, “the rule of exhaustion normally requires that the plaintiff petition the agency for a rulemaking.” Id. at 334. We held that the district court properly exercised its discretion in excusing the plaintiffs’ failure to exhaust, however, because it was clear from the defendants’ letters that the agency had taken a firm stand against changing the challenged rule. Id. at 334-45. We did not suggest in Skubel that a litigant who does not challenge the validity of a rule under the APA is required to exhaust a state’s fair hearing process before litigating under § 1983. Plaintiffs here do not bring a claim under the APA, nor do they seek a new administrative rule from a federal agency. Because the language of the Medicaid Act does not explicitly or implicitly require exhaustion of state remedies before a litigant sues under § 1983, we find no error in the district court’s refusal to require plaintiffs to exhaust Vermont’s fair hearing process. II A. The Medicaid program in which Vermont participates is a joint federal-state cost-sharing program to provide medical assistance to people whose income and resources are insufficient to cover the cost of necessary medical care. See 42 U.S.C. § 1396. The statutory scheme governing the Medicaid program is “of ‘unparalleled complexity.’ ” Camacho v. Perales, 786 F.2d 32, 38 (2d Cir.1986) (quoting DeJesus v. Perales, 770 F.2d 316, 321 (2d Cir.1985)). The Medicaid program requires states that participate to cover the cost of care for the “categorically needy,” which the statute defines as those individuals who are unable to cover the costs of their basic needs and already receive or are eligible for certain forms of public assistance. See Lewis v. Thompson, 252 F.3d 567, 570 (2d Cir.2001). The program also allows states to cover the costs of care for the “medically needy,” which the statute defines as people who have income and resources to cover the costs of their basic needs but not their necessary medical care. See 42 U.S.C. § 1396a(a)(10)(C); 42 C.F.R. § 435.301; Camacho, 786 F.2d at" }, { "docid": "405741", "title": "", "text": "on the extension of his parole term beyond five years (“Parole Extension Hearing”). The panel made no findings on this allegation. The panel found that Tatum violated his parole and recommended revocation of parole and a term of 84 to 112 months, without credit for time spent on parole, to be served consecutively with his perjury and bail-jumping sentences. The Regional Commission and the National Appeals Board denied Tatum’s appeals and approved the panel’s recommendation. Tatum filed this habeas corpus petition in federal district court in September 1984. The petition included two challenges to the Parole Commission determination. First, Tatum challenged his parole revocation on the ground that under 18 U.S.C. § 4211(c)(1) his parole automatically terminated after five years, on June 16, 1980; therefore, any extension of parole was invalid. Because he was not on parole when the Parole Commission issued the parole violation warrants, he argued, the parole revocation was void. Second, Tatum argued that he should have been given credit for the time he spent on parole because he received inadequate notice that his subsequent conviction could cause forfeiture of street time. In February 1985, based on the papers, the magistrate recommended dismissal of the petition. He found that, by signing the waiver form, Tatum waived his right to challenge the extension of his parole term. Since Tatum based his challenge to the parole revocation on his challenge to the extension of his parole term, the parole revocation claim failed. The magistrate also found that habeas corpus relief was not available for this type of claim. On the forfeiture of street time claim the magistrate found that Tatum failed to exhaust his administrative remedies before the Parole Commission. Tatum filed objections to the magistrate’s report, challenging the exhaustion of administrative remedies requirement. The magistrate rejected Tatum’s argument and filed a final report and recommendation in March 1985. The district court adopted the findings, conclusions, and recommendations of the magistrate. Tatum timely appeals the revocation and forfeiture rulings. He also raises other denial of due process claims: failure to inform him of his right to appear before the" }, { "docid": "7210331", "title": "", "text": "than did the Parole Commission, without more, neither compels nor supports the conclusion that the Commission did not meaningfully consider his accomplishments. Except for the matters already discussed in this opinion, “the information relied on by the Commission is sufficient to provide a factual basis for its reasons.” Solomon, 676 F.2d at 290. Therefore we find no abuse of discretion on that basis. D. CONCLUSION The decision of the district court must be reversed. We remand this case with instructions to grant the writ unless the Commission grants Schiselman a new reconsideration hearing within 60 days. At the new hearing, the Commission will be limited to determining Schiselman’s parole date based on the new, adverse information of the attempted escape from state custody. The Commission may not justify altering Schiselman’s previous parole determinations based upon any of the other infor mation contained in the Probation Office letter on which it declined to rely at the first reconsideration hearing. Thus exceeding Schiselman’s guideline range by 12 months cannot now be justified by the Commission. REVERSED AND REMANDED. . The Commission asserts in its jurisdictional statement that this court lacks jurisdiction over this action because Schiselman failed to exhaust his administrative remedies, apparently relying on a statement of the district court that \"if petitioner is dissatisfied with the results of the hearing, he must exhaust his administrative appeals before receiving judicial review on the merits by way of a new petition for habeas corpus relief.” Schiselman v. United States Parole Commission, No. TH 85-49-C, unpublished order at 1 (S.D.Ind. April 7, 1987). The district court apparently raised the exhaustion question sua sponte in ruling on Schiselman’s request to proceed in forma pauperis on appeal rather than in ruling on the merits of his motion. Under the circumstances of this case, in which appellant’s primary argument is that the Parole Commission failed to comply with an express order of this court, it is far from clear that he is required to exhaust his administrative remedies before seeking relief in federal court. We need not address that issue, however, because appellees never raised the" }, { "docid": "405742", "title": "", "text": "that his subsequent conviction could cause forfeiture of street time. In February 1985, based on the papers, the magistrate recommended dismissal of the petition. He found that, by signing the waiver form, Tatum waived his right to challenge the extension of his parole term. Since Tatum based his challenge to the parole revocation on his challenge to the extension of his parole term, the parole revocation claim failed. The magistrate also found that habeas corpus relief was not available for this type of claim. On the forfeiture of street time claim the magistrate found that Tatum failed to exhaust his administrative remedies before the Parole Commission. Tatum filed objections to the magistrate’s report, challenging the exhaustion of administrative remedies requirement. The magistrate rejected Tatum’s argument and filed a final report and recommendation in March 1985. The district court adopted the findings, conclusions, and recommendations of the magistrate. Tatum timely appeals the revocation and forfeiture rulings. He also raises other denial of due process claims: failure to inform him of his right to appear before the Early Termination Board; failure to permit him to review his record prior to the 1983 Hearing; failure to set a parole date within the parole guidelines, and failure to have his sentences run concurrently rather than consecutively. II. We review de novo the district court decision on a petition for writ of habeas corpus. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, — U.S.-, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). Parole Commission determinations are reviewed for abuse of discretion. Torres-Macias v. United States Parole Commission, 730 F.2d 1214, 1216 (9th Cir. 1984). Our jurisdiction to decide issues raised for the first time on appeal is discretionary, Yuckert v. Heckler, 774 F.2d 1365, 1367 (9th Cir.1985), but exercised only if the issues are purely legal, central to the case, and important to the public, id. Tatum argues that the Early Termination of Parole section of the Parole Commission and Reorganization Act entitled him to automatic termination of his parole status after five years on parole. This section provides that parole shall be" }, { "docid": "9614386", "title": "", "text": "remedies as set forth in the opinions of the circuits previously cited. We find persuasive the reasoning that the requirement of exhaustion of remedies will aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court’s time because of the possibility that the relief applied for may be granted at the administrative level; and allow the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings. Even if exhaustion is required, appellant argues that a federal court should hear his petition due to extraordinary circumstances. Appellant contends that this case is extraordinary because: (1) the Parole Commission acted arbitrarily and unfairly, and appellant had already unsuccessfully been through the parole appeals process; (2) the administrative appeals process is too lengthy; and (3) the district judge should have decided whether or not the Parole Commission may lawfully use the signal factor to establish a salient factor score and to go beyond the guidelines. We do not find appellant’s petition sufficiently extraordinary to warrant a remand. The alleged arbitrary action of the Parole Commission could be cured through administrative review without burdening the courts, and appellant has supplied no evidence which indicates that the appeals process was so lengthy as to be extraordinary. Moreover, the Parole Commission has been given wide discretion and may for “good cause” grant or deny release notwithstanding the guidelines. 18 U.S.C. Section 4206(c). Thus appellant must exhaust administrative remedies before challenging his federal custody by habeas corpus. AFFIRMED. . In Brady v. Smith, 656 F.2d 466 (9th Cir.1981), an action wherein plaintiff sought injunctive relief and damages because of purported overcrowding at a federal prison, we affirmed the district court’s dismissal of the complaint on the grounds of mootness and for the failure to state a claim for which relief could be granted. We specifically did not reach the question of whether a federal prisoner must exhaust administrative remedies regarding conditions of confinement because of the disposition of the appeal on other grounds." }, { "docid": "1985999", "title": "", "text": "DISCUSSION A. Exhaustion Initially, we note that when Leigh-nor filed his habeas petition in the district court he had not exhausted his administrative remedies in that he had not appealed the Parole Commission’s decision to the Commission’s National Appeals Board pursuant to 28 C.F.R. § 2.26. Thus, the dis trict court entertained Leighnor’s claim prematurely. See Merki v. Sullivan, 853 F.2d 599, 600-01 (8th Cir.1988) (finding federal prisoner’s challenge to Parole Commission decision premature due to prisoner’s failure to appeal to National Appeals Board); Willis v. Ciccone, 506 F.2d 1011, 1014-15 (8th Cir.1974) (holding that federal prisoners challenging the actions of prison authorities or prison conditions must exhaust available administrative remedies before seeking habeas relief). However, after the district court entered its judgment, Leighnor did appeal the Parole Commission’s decision to the National Appeals Board. The Board rejected Leigh-nor’s claim that the Parole Commission’s consideration of his escape and use of a false passport violated the rule of specialty. Because Leighnor has now exhausted his administrative remedies the district court’s error has been cured and we need not dismiss the appeal on exhaustion grounds. Accord Arias v. United States Parole Comm’n, 648 F.2d 196, 199 (3d Cir.1981) (holding that because prisoner exhausted remedies after district court’s judgment “the prematurity of the district court’s action is no longer of any significance”) (citation omitted). B. Standing We now turn to the government’s assertion that Leighnor lacks standing to challenge a violation of the rule of specialty. There exists disagreement among the circuits on the question of individuals’ standing to assert breaches of the specialty principle. This court addressed the issue in United States v. Thirion, 813 F.2d 146 (8th Cir.1987), and rejected as “without merit” the argument that an extradited individual lacks standing to challenge a violation of an extradition treaty. Id. at 151 n. 5 (citation omitted). The panel in Thi-rion held that an extradited individual “may raise whatever objections to his prosecution that [the surrendering country] might have.” Id. at 151. We are bound to follow Thirion on this point and thus reject the government’s claim that Leighnor lacks standing" }, { "docid": "17911165", "title": "", "text": "that addressed the incident in question and that he received no response.” Id. at 996-97. This allegation sufficed to establish that he had exhausted his administrative remedies, and we reversed the magistrate judge’s dismissal of Everette’s complaint. In contrast to Everette and Boyd, we affirmed the magistrate judge’s dismissal of complaints filed by plaintiffs Murray Allen, Larry B. Lemons, Cory Purifoy, and Tracy Smith. The significant problem with the complaints filed by Allen, Lemons, Purifoy, and Smith was that they included allegations that the prison facility’s operator “failed to adequately respond” to the plaintiffs complaint. Id. at 997-1000. Thus, we reasoned, “the allegation that [the operator] did not ‘adequately respond’ does not indicate whether [the operator] failed to respond at all, or whether [the operator] did in fact investigate the matter and that [the plaintiff] was simply unhappy with the result.” Id. at 997. Applying Boyd to the facts of this case, we hold that the district court erred in dismissing Fazzini’s first habeas petition. In his first habeas petition, Fazzini described the administrative process and his assertion for federal jurisdiction over his petition as follows: On March 19, 2004, a revocation hearing was held in Eaton, Ohio at the Preble County Jail. It is the position of the U.S. Parole Commission that the Petitioner is under the Commission’s jurisdiction until 2010 when the 25 year period covering the § 924c sentence has concluded. The hearing examiners recommended that the Petitioner’s parole be revoked for 52 months effective October 1, 2003 when he became a federal prisoner. On March 30, 2004, the Parole Commission accepted those recommendations. Petitioner then submitted a timely administrative appeal challenging the Parole Commission’s actions for the reasons stated herein. The U.S. Parole Commission, however, defaulted by failing to respond at all to that appeal. The Warden of NEOCC in Youngstown, Ohio is the current custodian. Fazzini’s first habeas petition describes with specificity the Commission’s administrative proceeding concerning his case and its outcome and, therefore, meets the standard set by the Boyd court. Fazzini states that he submitted an appeal of the Commission’s revocation, identifies- —" }, { "docid": "21949084", "title": "", "text": "section 191.5(a), does not constitute a “crime of violence” under 18 U.S.C. § 16 and, thus, is not an aggravated felony as defined by the Immigration and Nationality Act (“INA”), see 8 U.S.C. § 1101(a)(43). STANDARD OF REVIEW “We review a denial of a motion to dismiss an 8 U.S.C. § 1326 indictment de novo when the motion is based upon an alleged due process defect in the underlying deportation proceeding.” United States v. Pallares-Galan, 359 F.3d 1088, 1094 (9th Cir.2004). The district court’s factual findings are reviewed for clear error. United States v. Hinojosa-Perez, 206 F.3d 832, 835 (9th Cir.2000). DISCUSSION “Because the underlying removal order serves as a predicate element of [a § 1326 illegal reentry offense], a defendant charged with that offense may collaterally attack the removal order under the due process clause.” Pallares-Galan, 359 F.3d at 1095. In order to sustain the attack under the controlling statutory provisions, a defendant must ordinarily show: (1) exhaustion of available administrative remedies to seek relief from the deportation order, (2) improper deprivation of the opportunity for judicial review, and (3) fundamental unfairness of the underlying removal order. See 8 U.S.C. § 1326(d). Here, the government concedes that Leocal — a substantive interpretation of “crime of violence” under 18 U.S.C. § 16— applies to Camacho’s 1998 deportation hearing. Because the IJ erroneously advised Camacho that he was ineligible for discretionary relief when the IJ implicitly characterized Camacho’s conviction as an aggravated felony, the government also concedes that Camacho is excused from the exhaustion requirement and that Camacho was deprived of a meaningful opportunity for judicial review. See Pallares-Galan, 359 F.3d at 1096-98. Still, to succeed in his attack, Camacho must demonstrate that he was prejudiced and that, therefore, the removal order was fundamentally unfair. See 8 U.S.C. § 1326(d)(3). Camacho’s Notice to Appear charged him as removable only for having committed an aggravated felony; as discussed above, Camacho’s prior conviction did not fit that definition. Thus, Camacho was removed when he should not have been and clearly suffered prejudice. We, therefore, reverse and remand with instructions to dismiss the indictment." }, { "docid": "14998024", "title": "", "text": "dismiss Carter’s habeas petition on the grounds that he had failed to exhaust available state law remedies. The magistrate judge recommended that the district court dismiss Carter’s claims on that ground. Appendix (“App.”) at 647. While noting that Carter’s time to appeal had lapsed and his claims had therefore defaulted, the magistrate judge concluded that the procedural bar issue was not before the court. App. at 646 n. 2. By order entered March 8, 1994, the district court adopted the magistrate judge’s Report and Recommendation and dismissed the petition for failure to exhaust state remedies. Although Carter did not appeal the final order denying him post-conviction relief in the state trial court, he did file a timely notice of appeal of the denial of his habeas petition and requested the issuance of a certificate of probable cause to appeal, which a panel of this court granted on August 24, 1994. Pursuant to 28 U.S.C. § 1291, we have jurisdiction over this appeal from the district court’s final order dismissing Carter’s petition. We exercise plenary review over the district court’s conclusion that state remedies have not been exhausted and that exhaustion should not be excused. Story v. Kindt, 26 F.3d 402, 406 (3d Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 593, 130 L.Ed.2d 506 (1994); Hankins v. Fulcomer, 941 F.2d 246, 249 (3d Cir.1991). II. Pursuant to 28 U.S.C. §§ 2254(b) & (c), a federal court may not grant an application for writ of habeas corpus for a state prisoner until the applicant has exhausted available state remedies. In general, “a state prisoner seeking federal habeas relief must present each of his claims to the state’s highest court.” Story v. Kindt, 26 F.3d at 405; Wojtczak v. Fulcomer, 800 F.2d 353 (3d Cir.1986). Exhaustion does not limit the court’s jurisdictional power to issue a writ but rather arises from considerations of comity. Rose v. Lundy, 455 U.S. 509, 515, 102 5.Ct. 1198, 1201, 71 L.Ed.2d 379 (1982); Codispoti v. Howard, 589 F.2d 135, 140 (3d Cir.1978). Therefore, federal courts may entertain the merits of a petition for habeas corpus where" }, { "docid": "19994077", "title": "", "text": "DECISION AND ORDER DENYING HABEAS CORPUS HAUK, District Judge. The petitioner filed a Petition for Writ of Habeas Corpus as a person in Federal Custody on February 27,1978, alleging that the United States Parole Commission had denied petitioner his rights guaranteed by 18 U.S.C. § 4214(b) in that his Parole Revoca tion Hearing was not held “at or reasonably near the place of the alleged parole violation . . . Petitioner also argues that he was not represented by his retained attorney nor was he able to present witnesses on his own behalf. Petitioner’s final argument is that at no time was he ever given a copy of the presentence report, United States Attorneys’ Reports, or Judge’s Recommendation. The Court having examined each and all of the arguments finds them to be without merit. I FAILURE TO EXHAUST INTERNAL ADMINISTRATIVE REMEDIES Habeas Corpus, being a Writ of extraordinary nature requires that one may not resort to the Writ until all other remedies have been exhausted. Mason v. Ciccone, 531 F.2d 867 (8th Cir. 1976). Here, petitioner did not exhaust the following administrative remedies: 1. Appeal to the Regional Parole Commission for the Western Region as authorized by 18 U.S.C. § 4215(a) and 28 C.F.R. § 2.25; and 2. Appeal to the National Parole Commission Appeals Board pursuant to 18 U.S.C. § 4215(b) and 28 C.F.R. § 2.26. The reasons for the requirements of exhaustion of administrative remedies are: judicial review is facilitated by allowing the appropriate agency to develop a factual record; judicial time can be conserved because the agency might grant the relief requested; and administrative autonomy requires that an agency be given the opportunity to correct its own errors. Marrero v. Warden, 483 F.2d 656, 659 (3d Cir. 1973), rev’d on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). II PETITIONER WAS NOT ENTITLED TO A LOCAL FINAL PAROLE REVOCATION HEARING 18 U.S.C. § 4214(c) provides that when an alleged parole violator knowingly and intelligently admits a parole violation at a local preliminary hearing, the Commission may conduct the final hearing at the institution" }, { "docid": "9726948", "title": "", "text": "SKOPIL, Circuit Judge: Rondal Ray Francis, a federal prisoner, appeals the denial of his pro se petition for writ of habeas corpus. The district court dismissed Francis’ petition because it determined that Francis failed to exhaust available administrative remedies. The court did so without a hearing and without considering Francis’ excuses for failing to exhaust. We vacate and remand for further proceedings. I. Francis filed this petition challenging the lawfulness of the conditions of imprisonment rather than the lawfulness of the original conviction. See 28 U.S.C. § 2241 (1982); accord, Hajduk v. United States, 764 F.2d 795, 796 (11th Cir.1985) (per curiam). At the time the petition was filed, Francis was incarcerated at Lompoc, California. Before the district court rendered its judgment, Francis was transferred to Leavenworth, Kansas. We maintain our jurisdiction, however, because “jurisdiction attaches on the initial filing for ha-beas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change.” Santillanes v. United States Parole Comm’n, 754 F.2d 887, 888 (10th Cir.1985); accord Smith v. Campbell, 450 F.2d 829, 834 (9th Cir.1971). II. Francis’ claims center on three prison administrative actions taken against him. First, Francis was found guilty on January 30, 1987 of extorting and threatening prisoners. He contends that as a result of this administrative determination, his parole date was deferred. Second, Francis was given an incident report on July 9, 1987 for refusing to enter the general prison population, resulting in a loss of good time credit. Finally, Francis’ parole date was rescinded on January 8, 1988 by the Parole Commission. There is no dispute that Francis failed to exhaust his administrative remedies for the July 9, 1987 charge. Francis did file an administrative complaint with the warden, contending that he did not refuse to enter the general prison population. The warden refused to overturn the decision or the sanction. Francis did not, however, appeal the warden’s decision as required by 28 C.F.R. §§ 542.10-16. It appears to us, however, that the time limitation specified in section 542.15 for appealing the warden’s decision had long passed even" }, { "docid": "1985998", "title": "", "text": "the meaning of the Treaty. Further, [Leigh-nor’s] contention that his sentence has been enhanced as surely as if he had been convicted is without merit. Utilizing the circumstances of conduct for which [Leighnor] was not charged to go above [his] guideline range was a proper exercise of the Parole Commission’s discretion. Leighnor v. Turner, No. 88-3068, slip op. at 1-2 (W.D. Mo. May 20, 1988) (citation omitted). In this appeal, Leighnor contests only the Parole Commission’s reliance on his escape and use of a false passport to enhance his parole guideline range. He no longer challenges his detention between the time of his return to the United States and the time of the dismissal of the escape charge because when he was sentenced for his second mail fraud conviction the sentencing judge granted him credit for the time he spent in confinement after his extradition. We conclude that the Parole Commission’s consideration of Leighnor’s escape and use of a false passport did not violate the specialty doctrine and thus affirm the district court’s judgment. II. DISCUSSION A. Exhaustion Initially, we note that when Leigh-nor filed his habeas petition in the district court he had not exhausted his administrative remedies in that he had not appealed the Parole Commission’s decision to the Commission’s National Appeals Board pursuant to 28 C.F.R. § 2.26. Thus, the dis trict court entertained Leighnor’s claim prematurely. See Merki v. Sullivan, 853 F.2d 599, 600-01 (8th Cir.1988) (finding federal prisoner’s challenge to Parole Commission decision premature due to prisoner’s failure to appeal to National Appeals Board); Willis v. Ciccone, 506 F.2d 1011, 1014-15 (8th Cir.1974) (holding that federal prisoners challenging the actions of prison authorities or prison conditions must exhaust available administrative remedies before seeking habeas relief). However, after the district court entered its judgment, Leighnor did appeal the Parole Commission’s decision to the National Appeals Board. The Board rejected Leigh-nor’s claim that the Parole Commission’s consideration of his escape and use of a false passport violated the rule of specialty. Because Leighnor has now exhausted his administrative remedies the district court’s error has been cured and" }, { "docid": "7210332", "title": "", "text": "REMANDED. . The Commission asserts in its jurisdictional statement that this court lacks jurisdiction over this action because Schiselman failed to exhaust his administrative remedies, apparently relying on a statement of the district court that \"if petitioner is dissatisfied with the results of the hearing, he must exhaust his administrative appeals before receiving judicial review on the merits by way of a new petition for habeas corpus relief.” Schiselman v. United States Parole Commission, No. TH 85-49-C, unpublished order at 1 (S.D.Ind. April 7, 1987). The district court apparently raised the exhaustion question sua sponte in ruling on Schiselman’s request to proceed in forma pauperis on appeal rather than in ruling on the merits of his motion. Under the circumstances of this case, in which appellant’s primary argument is that the Parole Commission failed to comply with an express order of this court, it is far from clear that he is required to exhaust his administrative remedies before seeking relief in federal court. We need not address that issue, however, because appellees never raised the exhaustion issue in district court and have therefore waived it. See Del Raine v. Carlson, 826 F.2d 698, 703 (7th Cir.1987). The cases cited by appellees in support of their jurisdictional challenge, do not, in any event, so hold. Exhaustion of administrative remedies is not a jurisdictional prerequisite here. See Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983); Anderson v. Miller, 772 F.2d 375, 377 (7th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986). Schiselman is a federal, not a state prisoner; the concerns of comity and federalism which drive the exhaustion doctrine are not implicated. See Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 1674-75, 95 L.Ed.2d 119 (1987) (quoting Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201-02, 71 L.Ed.2d 379 (1982)). . The terms “offense\" and \"offense behavior” refer to the conduct for which the prisoner is currently serving his sentence. See 28 C.F.R. § 2.20; United States Parole Commission Rules" }, { "docid": "8099168", "title": "", "text": "heroin involved in his offense. This appeal followed. II. The threshold question in this appeal is whether the district court should have dismissed appellant’s petition for writ of habeas corpus because of his failure to exhaust administrative remedies. The Commission argues that the district court should have stayed consideration of Arias’ petition pending completion of the parole hearing scheduled for August, 1980. While we agree that the district court erred in reaching the mer its of Arias’ petition during the pendency of administrative proceedings, subsequent administrative action by the Commission has rendered any error harmless. A federal prisoner ordinarily may not challenge a parole decision until he has exhausted all available administrative remedies. United States ex rel. Caruso v. United States Board of Parole, 570 F.2d 1150, 1152 (3d Cir.) cert. denied, 436 U.S. 911, 98 S.Ct. 2249, 56 L.Ed.2d 411 (1978); United States ex rel. Sanders v. Arnold, 535 F.2d 848, 850 (3d Cir. 1976). We have adhered to the exhaustion doctrine for several reasons: (1) judicial review may be facilitated by allowing the appropriate agency to develop a factual record and apply its expertise, (2) judicial time may be conserved because the agency might grant the relief sought, and (3) administrative autonomy requires that an agency be given an opportunity to correct its own errors. United States ex rel. Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656, 659 (3d Cir. 1973), rev’d on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). See also Sanders, 535 F.2d at 853 (Adams, J., dissenting). In this case it is clear that the district court acted before the Commission had an opportunity to correct its own errors; indeed, the Commission had reopened Arias’ case for that express purpose. Accordingly, the district court acted on appellant’s petition prematurely. Although we conclude that the district court should have dismissed appellant’s petition on exhaustion grounds, subsequent proceedings of the Commission have mooted any error by the district court. The Commission held a new parole hearing in August, 1980 and once again refused to release appellant prior to the expiration of his" } ]

[ { "docid": "22930041", "title": "", "text": "the fraud claim); see also Harsco Corp. v. Segui, 91 F.3d 337, 345-46 (2d Cir.1996) (enforcing a contractual disclaimer containing specific representations). Caiola specifically alleges that Citibank offered false assurances that after the Travelers merger the parties' existing trading relationship would not change and that Citibank would continue to act as a delta hedging counterparty. (E.g., Compl. liii 85, 98, 101.) The disclaimer in the Confirmation states only in general terms that neither party relies \"on any advice, statements or recommendation (whether written or oral) of the other party.\" (Confirmation ¶ 9(a)(i).) This disclaimer is general, not specific, and says nothing about Citibank's commitment to delta hedging. Finally, we deem irrelevant Citibank's contention that the disclaimers meant that it owed Caiola no duty to disclose its hedging strategy. Whether Citibank had such a duty in the first instance is irrelevant because Caiola alleges that Citibank chose to disclose its hedging strategy. Caiola alleges that Citibank affirmatively spoke and, in doing so, made material misrepresentations concerning this strategy: \"Citibank representatives, as well as others, repeatedly emphasized that ... Citibank, as counterparty, would always `warehouse risk' and manage and maintain the necessary delta core position so that Mr. Caiola would be assured of being able to open and close positions on demand.... ” (Comply 62(d).) Assuming Caiola can prove these allegations, the lack of an independent duty is not, under such circumstances, a defense to Rule 10b-5 liability because upon choosing to speak, one must speak truthfully about material issues. See Rubin v. Schottenstein, Zox & Dunn, 143 F.3d 263, 267-68 (6th Cir.1998); Ackerman v. Schwartz, 947 F.2d 841, 848 (7th Cir.1991); Robbins v. Moore Med. Corp., 788 F.Supp. 179, 184 (S.D.N.Y.1992). Once Citibank chose to discuss its hedging strategy, it had a duty to be both accurate and complete. II. State Law Claims After dismissing Caiola’s claims under the federal securities laws, the District Court declined to exercise supplemental jurisdiction over his state law claims. Because we reinstate Caiola’s federal claims, we also reinstate his state law claims because they “form part of the same case or controversy.” See 28 U.S.C." } ]

[ { "docid": "20753344", "title": "", "text": "small piece of the total restructuring effort” (Denis Rpt. at 13) is inconsistent with other statements in his report about the CBO Reorganization. Even if the plaintiffs are correct, this is not a basis for excluding his report or testimony. B. Probative Value; Prejudice The plaintiffs argue that Prof. Denis’s opinions on operational restructurings in general and Xerox’s operational restructuring in particular are not related to the key issue in the case, namely whether the defendants made materially false and misleading statements as alleged by the plaintiffs. However, the plaintiffs contend that the CBO Reorganization had a material negative impact on Xerox’s operations and there were materially false and misleading statements about that fact during the Class Period. Prof. Denis’s report, and specifically his analysis of comparable restructurings, speaks to the materiality of the alleged misstatements or omissions, an essential element of the plaintiffs’ claim. See San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., Inc., 75 F.3d 801, 808 (2d Cir.1996) (stating that to prevail on a Section 10(b) and Rule 10b-5 claim, a plaintiff must establish a false statement or omission of a material fact). In addition, Prof. Denis’s testimony will provide the jury with background and context about an area with which jurors are not usually familiar, i.e. operational restructurings. As such, Prof. Denis’s report and testimony cannot be said to have “zero probative value,” as the plaintiffs contend. The plaintiffs argument that permitting Prof. Denis to testify would be prejudicial to the class is based on the premise that his report and testimony are irrelevant. However, as discussed above, the court concludes that Prof. Denis’s report and testimony are relevant. Finally, even if the class was prejudiced by the admission of Prof. Denis’s testimony, the court concludes that the “probative value” of that testimony is not “substantially outweighed by the danger of unfair prejudice ...,” Fed.R.Evid. 403, because there is no unfair prejudice, and to the extent there is a concern about the jury being confused, a limiting instruction can be given. See AMW Materials Testing, Inc. v. Town of Babylon, 584 F.3d" }, { "docid": "20753332", "title": "", "text": "RULING ON LEAD PLAINTIFFS’ MOTION TO EXCLUDE THE EXPERT REPORT AND TESTIMONY OF PROFESSOR DAVID DENIS ALVIN W. THOMPSON, District Judge. For the reasons set forth below, the Motion to Exclude the Expert Report and Testimony of David Denis is being denied. I. BACKGROUND The court assumes familiarity with the factual background of the case. See In re Xerox Corp. Sec. Litig., 165 F.Supp.2d 208 (D.Conn.2001). In brief, as alleged in the Amended Consolidated Class Action Complaint (Doc. No. 42), Xerox Corporation (“Xerox”) is purported to have misrepresented the impact of a reorganization of its Customer Business Organization (the “CBO Reorganization”), which was part of a worldwide restructuring by Xerox in 1998 (the “Restructuring”), thereby artificially inflating the price of Xerox common stock. The plaintiffs contend that problems created by the CBO Reorganization largely negated the benefits resulting from the Restructuring. Professor David Denis (“Prof. Denis”) is the Burton D. Morgan Chair of Private Enterprise at the Krannert School of Management, Purdue University. (See Expert Report of David Denis, Ph.D., Feb. 8, 2008 (Doc. No. 387, Ex. A) (the “Denis Rpt.”) at 2.) Prof. Denis has served as a consultant to organizations in the public and private sectors on various aspects of financial markets and securities, and has written a book, taught courses, and reviewed and edited articles about corporate restructuring. (See Denis Rpt. at 2-3.) Prof. Denis has been asked to provide general background on the reasons for and the consequences of operational restructurings undertaken by large corporations; to determine whether Xerox’s stated objectives for the Restructuring were consistent with norms for other firms conducting operational restructurings; to assess whether it is unusual for individual components of a restructuring plan to encounter difficulties of the type and magnitude encountered in the CBO Reorganization, as alleged by the plaintiffs; to measure Xerox’s operating performance in the year of and the year following the initiation of the Restructuring, after making certain adjustments, and then compare Xerox’s performance during these two years to the operating performance in the year of and the year following the initiation of similar restructurings undertaken by other" }, { "docid": "18070657", "title": "", "text": "Sales Force Realignment and the CBO Reorganization. Moreover, there were repeated disclosures throughout 1999 as to the ongoing effects of the CBO Reorganization, which included disclosures with respect to the negative impact of the CBO Reorganization on the performance of Xerox’s sales force. Therefore, the court concludes that the plaintiffs have not created a genuine issue of material fact as to whether September 16, 1999 can be a corrective disclosure date. 2. October 8,1999 On October 8, 1999, Xerox announced that it expected to report “essentially fiat revenue for the third quarter and about a 10-12 percent decline in diluted earnings per share from 53 cents in the 1998 third quarter.” Press Release, Xerox Corp., Xerox Announces Preliminary Third Quarter Results, Business Wire IRX-PROD-0095847 (Oct. 8, 1999) (Gold-stein Decl. Ex. 31). Xerox attributed its poor performance to “a combination of weaker revenues together with unfavorable product mix and increased competitive pressures, which significantly impacted operating margins. Sales productivity was affected by the continued realignment to an industry-oriented approach and in the U.S. by the ongoing impact of the customer administration restructuring ...” (Id.) The plaintiffs argue that the facts defendants have admitted establish loss causation with respect to the October 8, 1999 press release. The plaintiffs point to the fact that the defendants “concede that the press- release identifies the ‘ongoing impact of customer administration- [CBO] restructuring’ as one of the factors responsible for the disappointing earnings. And they do not dispute that the announcement of this decline in earnings caused the price of Xerox’s stock to drop 24.9%, or $10.65 per share, on October 8.” (Pi’s. Mem. in Opp. at 37.) This argument is in substance that loss causation is established simply because the announcement of the declining earnings caused the price of Xerox’s stock to drop. It is undisputed that during the September 22, 1999 teleconference Romeril stated that Xerox had significantly underestimated -the revenue impact in the first quarter of 1999 of the negative impact of the CBO Reorganization on the sales force. The plaintiffs fail to identify what new fraud-related information was included in the press" }, { "docid": "18070637", "title": "", "text": "immaterial and cured any omissions by the company.” (emphasis in original)). “Because an alleged misrepresentation or omission must be examined in light of the information available to the market, no securities law disclosure violation can occur when information allegedly omitted from a corporation’s public disclosures is already available to the market.” Stepak v. Aetna Life and Cas. Co., Civ. No. H:90CV00886(AVC), 1994 WL 858045 at *7 (D.Conn. Aug. 29, 1994). The plaintiffs contend that the defendants failed to disclose information to the marketplace in three areas: first, the impact of the CBO Reorganization on Xerox’s operations in the areas of order processing, billing and collections; second, the impact of the CBO Reorganization on the performance of Xerox’s sales force; and third, the ongoing nature of the problems associated with the CBO Reorganization. The court finds that there is no genuine issue as to the fact that such information was disclosed to the market. Thus, the defendants are entitled to summary judgment. 1. The Impact on Operations The plaintiffs contend that the defendants failed to disclose that the CBO Reorganization was interfering with operations and that this interference was offsetting dramatically the claimed benefits from the Worldwide Restructuring. The record shows, however, that the defendants repeatedly disclosed metrics, such as the increase in both accounts receivable and DSO, that were indicative of operational difficulties. The plaintiffs argue that the defendants attributed these problems to the Sales Force Realignment rather than to the CBO Reorganization in an attempt to mask problems with the CBO Reorganization. However, the record shows that the defendants attributed increases in accounts receivable and DSO to both the CBO Reorganization and the Sales Force Realignment. Consistent terminology is not always used in documents created by the defendants and by market analysts, and where there it is ambiguous as to whether a document refers to, e.g. the CBO Reorganization, reasonable inferences are drawn in favor of the plaintiffs. The internal memorandum from Fishbach to Allaire, Thoman and Romeril stating that the deterioration in DSO at September 30, 1998 was largely driven by the CRO Reorganization is dated November 6," }, { "docid": "18070626", "title": "", "text": "nonmoving party cannot simply rest on the allegations in its pleadings since the essence of summary judgment is to' go beyond the pleadings to determine if a genuine issue of material fact exists. See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. “Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact,” Weinstock, 224 F.3d at 41, if the movant demonstrates an absence of such issues, a limited burden of production shifts to the nonmovant, who must “demonstrate more than some metaphysical doubt as to the material facts, ... [and] must come forward with specific ■ facts showing that there is a genuine issue for trial.”' Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993) (quotation marks, citations and emphasis omitted). Furthermore, “unsupported allegations do not create a material issue of fact.” Weinstock, 224 F.3d at 41. If the nonmovant fails to meet this burden, summary judgment should be granted. III. DISCUSSION The plaintiffs claim that the defendants violated Sections 10(b) and 20(a) and Rule 10b-5 of the Exchange Act by misrepresenting the success of the Worldwide Restructuring. The plaintiffs contend that the defendants’ statements were materially false and misleading because they claimed the benefits of the Worldwide Restructuring without disclosing problems associated with the CBO Reorganization that negated those benefits. - The - plaintiffs claim the defendants were required to, but did not, disclose the negative impact of the CBO Reorganization on Xerox’s administrative operations in the areas of order processing, billing and .collections; the negative impact of the CBO Reorganization on the performance of Xerox’s sales force; and the ongoing nature of the problems associated with the CBO Reorganization. The defendants argue that they are entitled to summary judgment based on the fact that their statements about the Worldwide Restructuring were at all times accurate because the Worldwide- Restructuring produced millions of dollars- of benefits during the Class Period. Also, the defendants contend that they had no duty to disclose the operational problems associated with the CBO Reorganization but, despite not having a duty to" }, { "docid": "18070644", "title": "", "text": "in Q3 and Q4.” Rosenzweig & Kalinowski, Salomon Smith Barney, XRX: Comments on the 10Q IRX-PROD-0010522 (Aug. 13, 1999) (Goldstein Decl. Ex. 56). On August 16, 1999 Salomon Smith Barney also reported: Accounts receivable rose dramatically in the second quarter, largely due to the U.S. operations. DSOs, which were up by 20% year-over-year in Q2, should start coming down sequentially in the third quarter, as new hires in collections begin to take hold. By the end of 1999, DSOs actually could be even or down versus last year, and by 2000, the average could approximate 1997 levels. Rosenzweig & Kalinowski, Salomon Smith Barney, XRX: Upbeat Conversation with Management IRX-PROD-0000175 (Aug. 16, 1999) (Goldstein Decl. Ex. 57). Thus, the court concludes that information as to the negative impact of the CBO Reorganization on Xerox’s operations in the areas of order processing, billing and collections was disclosed to the market both by the defendants and by market analysts prior to September 16,1999. 2. The Impact on the Sales Force The plaintiffs contend that the defendants failed to disclose that implementation of the CBO Reorganization had a negative impact on the performance of Xerox’s sales force. The record shows, however, that information was disclosed to the market prior to September 16, 1999 about the negative impact that the CBO Reorganiza^ tion had on the sales force. The plaintiffs contend that the defendants attributed problems- to -the • Sales Force Realignment rather than to the CBO Reorganization in an attempt to mask problems with the CBO Reorganization. Then, on or around April 27, 1999, when Thoman was talking to Investor’s Business Daily about Xerox’s strategy for a focus on industry selling, Thoman attributed Xerox’s drop in revenue for the preceding quarter to both “Xerox’s ongoing restructuring and the realignment of its sales force.” Michael Lyster, Digital Copiers: Xerox Ticket to Networking Service Plans, Investor’s Bus. Daily, Apr. 27, 1999, at A6, IRX-PROD-0050433 (quoting Rick Thoman) (Goldstein Decl. Ex. 43). Also, Buehler’s May 3, 1999 memorandum sent to Thomas Dolan (with copies to Romeril and Thoman) reviewing issues related to the CBO Reorganization mentioned “Sales" }, { "docid": "18070631", "title": "", "text": "disclosure is necessary to make prior statements not misleading. Id. at 267-68 (citations omitted). The defendants argue that they had no duty to speak out about the CBO Reorganization’s problems, even assuming those problems would have been material to investors, because (i) the alleged misstatements refer to the Worldwide Restructuring as a whole, (ii) the defendants, never touted the benefits of the CBO Reorganization or any of the other individual initiatives that comprised the Worldwide Restructuring and (iii) there is no evidence that the defendants ever misstated the impact of the Worldwide Restructuring. The defendants contend that the law is clear that under such circumstances, they had no duty to disclose. They rely primarily on In re Raytheon Sec. Litig., 157 F.Supp.2d 131 (D.Mass.2001), and In re Winn-Dixie Stores, 531 F.Supp.2d 1334 (M.D.Fla.2007),. and they characterize Raytheon as directly on point. In Raytheon, the corporate defendant had undertaken “a massive consolidation and cost reduction program” in one of its segments, Raytheon Systems Company (“RSC”). 157 F.Supp.2d at 141. The plaintiff alleged that, the defendants never disclosed that a “dearth of software engineers was directly attributable to the inhospitable employment climate created by RSC’s aggressive and far-reaching consolidation- program.” Id. at 142. “At various times, [the defendants] reported publicly on the- progress of RSC’s consolidation efforts.... What the defendants did not disclose was that the ongoing consolidation was impairing Raytheon’s ability to attract and retain new engineers for several important projects.” Id. at 149. “At the end of the Class Period, Raytheon disclosed that nearly one-third of the company’s 1999 revenue shortfall — approximately $170 million — was attributable to the shortage of engineers.” Id. at 142. The court held: Here, the statements concerning the success of RSC’s consolidation efforts did not give rise to a duty to disclose the ongoing shortage of engineers. Although information about the shortage of engineers may have been interesting marketwise, its omission did not alter the meaning of the defendants’ consistent statements-that RSC was successfully restructuring and scaling down its operations. Id. at 150. At issue in Raytheon was a plan for reducing costs and" }, { "docid": "18070633", "title": "", "text": "the omitted disclosures related to a situation that lead to a shortfall in revenues. However, here what is at issue is a plan to reduce costs and claims of failure to disclose not only conditions which lead to a shortfall in revenue, but also additional costs that offset the savings expected to be realized pursuant to the plan. Thus, the court does not view Raytheon as directly on point. In re Winn-Dixie Stores involved a chain of grocery stores that had undertaken a centralization and restructuring program. While the court concluded that the “[¿Defendants had no duty to discuss the bumps along the road to centralization, or the fact that centralization posed new challenges in Winn-Dixie’s respective divisions,” pivotal in the court’s analysis was its determination that “the Consolidated Complaint’s description of centralization’s alleged failure ... is a description of alleged mismanagement.” In re Winn-Dixie Stores, 531 F.Supp.2d at. 1348. The court held that: [e]ach and every statement alleged to bé fraudulent by Plaintiff is either (1) a forward looking statement protected by the PSLRA’s safe harbor or (2) clearly immaterial corporate puffery. In addition, the alleged material omission — that Defendants failed to disclose 'that centralization was a failure — is akin to á failure to disclose mismanagement, which is not actionable. ' • Id. at 1347. In view of the net savings realized by Xerox from the Worldwide Restructuring, the court agrees that there is .no genuine issue as to the fact that the defendants’ statements about the benefits of the Worldwide Restructuring were not false. However, the court concludes that Raytheon, Wiwnr-Dixie and the other cases cited by the defendants do not establish that -as a matter of law the defendants in this case had no duty to speak about the CBO Reorganization’s problems because what must be considered in determining whether there was a duty to disclose is the particular prior statement, the particular undisclosed information and whether disclosure of the omitted fact(s) at issue would be viewed by a reasonable investor as having significantly altered the total mix of the information available. Thus, the court" }, { "docid": "18070636", "title": "", "text": "B. Full Disclosure The defendants argue, in the alternative, that if they did have a duty to disclose the impact of the CBO Reorganization they fully met that obligation. The court agrees with the defendants that they are not limited to a “truth-on-the-market defense.” Cf. Canino v. Citizens Utilities Co., 228 F.3d 154, 167 (2d Cir.2000) (Under the truth-on-the-market defense “[a] defendant may rebut the presumption that its misrepresentations have affected the market price of its stock by showing that the truth of the matter was already known.”). “[I]t is indisputable that there can be no omission where the allegedly omitted facts are disclosed.” In re Progress Energy, Inc., 371 F.Supp.2d 548, 552 (S.D.N.Y.2005). Furthermore, the identity of the individual or group disclosing the allegedly omitted information does not affect the disclosure analysis. See Iron Workers Local 16 Pension Fund v. Hilb Rogal & Hobbs Co., 432 F.Supp.2d 571, 580 (E.D.Va.2006) (“Where information about a company was made available in an analyst report, or by newspaper articles, any withholding of information by the company is immaterial and cured any omissions by the company.” (emphasis in original)). “Because an alleged misrepresentation or omission must be examined in light of the information available to the market, no securities law disclosure violation can occur when information allegedly omitted from a corporation’s public disclosures is already available to the market.” Stepak v. Aetna Life and Cas. Co., Civ. No. H:90CV00886(AVC), 1994 WL 858045 at *7 (D.Conn. Aug. 29, 1994). The plaintiffs contend that the defendants failed to disclose information to the marketplace in three areas: first, the impact of the CBO Reorganization on Xerox’s operations in the areas of order processing, billing and collections; second, the impact of the CBO Reorganization on the performance of Xerox’s sales force; and third, the ongoing nature of the problems associated with the CBO Reorganization. The court finds that there is no genuine issue as to the fact that such information was disclosed to the market. Thus, the defendants are entitled to summary judgment. 1. The Impact on Operations The plaintiffs contend that the defendants failed to disclose" }, { "docid": "18070648", "title": "", "text": "out of the field. Memorandum from Thomas J. Dolan to Barry D. Romeril on Second Quarter/Second. Half IRX-PROD 0124539 (April 16, 1999)(Goldstein Decl. Ex. 18). Thus, the court concludes that information as to the negative impact of the CBO Reorganization on the performance of Xerox’s sales force was disclosed to the market prior to September 16,1999. 3. Ongoing Nature of the Problems The plaintiffs contend that the defendants disguised the ongoing nature of the problems associated with the CBO Reorganization. The plaintiffs have failed to 'create a genuine issue of material fact as to this contention. ¡ First, as reflected in the discussion of the two prior contentions, there' was a series of disclosures about problems associated with the CBO Reorganization from at the latest November 10, 1998 to at least August 16, 1999. These continuing disclosures conveyed that the problems were ongoing in nature. Second, while the defendants’ initial statements about the problems associated with the CBO Reorganization characterized the problems as temporary, the market was informed well before September 16,1999 that it would take through the end of 1999 to remedy the problems. On March 15, 1999, a Morgan Stanley report stated that: ' receiyab'les ballooned as Xerox attempted to* restructure several operations in the U.S. The reorganization and reorientation of business units (from geographical to customer-focused) led to the disruption in billing cycle productivity. Once again, management remains committed to reducing receivable levels back to those found in 1997 by year-end 1999. Rebecca Runkle, Morgan Stanley Dean Witter, Xerox (XRX): Preliminary Update on Year-End Balance Sheet and Cash Flow Items MS00054, MS00055 (Mar. 15, 1999) (Goldstein Deck Ex. 39). On April 23, 1999, Lehman Brothers reported'thát “it may be another quarter or two before there is meaningful improvement in DSOs and inventories.” Lehman Bros., Xerox: Renewed Focus on Top Line; We Regard IQ Slip As Temporary IRX-PROD-0000454 (Apr. 23, 1999) (Gold-stein Deck Ex. 42). Also, in June 1999, a Prudential Securities Analyst Report was issued' based on statements made by Romeril earlier that month. The report recited that Romeril acknowledged Xerox’s disappointing performance with respect to inventory" }, { "docid": "18070634", "title": "", "text": "safe harbor or (2) clearly immaterial corporate puffery. In addition, the alleged material omission — that Defendants failed to disclose 'that centralization was a failure — is akin to á failure to disclose mismanagement, which is not actionable. ' • Id. at 1347. In view of the net savings realized by Xerox from the Worldwide Restructuring, the court agrees that there is .no genuine issue as to the fact that the defendants’ statements about the benefits of the Worldwide Restructuring were not false. However, the court concludes that Raytheon, Wiwnr-Dixie and the other cases cited by the defendants do not establish that -as a matter of law the defendants in this case had no duty to speak about the CBO Reorganization’s problems because what must be considered in determining whether there was a duty to disclose is the particular prior statement, the particular undisclosed information and whether disclosure of the omitted fact(s) at issue would be viewed by a reasonable investor as having significantly altered the total mix of the information available. Thus, the court cannot conclude that, as a matter of law, when a corporation makes statements about a restructuring as a whole, it has no duty to disclose with respect to any of the components of that restructuring so long as the statements about the restructuring as a whole are literally true. Cf. Basic Inc. v. Levinson, 485 U.S. 224, 236, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (“Any approach that designates a single fact or occurrence as always determinative of an inherently fact-specific finding such as materiality, must necessarily be overinclusive or underinclusive.”). Here, the defendants’ argument that they had no duty to disclose is premised on the court finding that as a matter of law there is no duty to disclose under such circumstances. There is no analysis of whether disclosure of the allegedly omitted facts would have been viewed by a reasonable investor as having significantly altered the total mix of information available. Therefore, the court concludes that the defendants have not met their initial burden in moving for summary judgment as to this point." }, { "docid": "550648", "title": "", "text": "Rpt.”) at ¶ B.) He was retained by the plaintiffs to: serve as a designated expert to give [his] opinion on the following: (i) Did Xerox’s 1998 restructuring have a material im pact on Xerox’s operations? (ii) If so, were these effects either known to the Defendants or so obvious that the Defendants should have known? (iii) Were the Defendants’ public statements about the impacts of the restructuring on Xerox’s operations complete and accurate? (Id. at ¶ A.) Buchwald’s report gives a narrative description of the surrounding events, including quotes from various press releases and other documents. He opines that Xerox’s management was aware of the inadequacies of its existing billing system. He then discusses the purpose and scope of the CBO Reorganization, including the consequential disruptions to the sales force, the human resource issues and the billing issues. He also discusses the cash flow impacts, customer impacts and financial implications. He gives his opinion that “the CBO reorganization had material negative impacts on Xerox’s operations during the class period.” (Id. at ¶ L.) Buchwald adds that “it seems clear that Xerox’s Management knew or should have known about the adverse effects of the CBO Reorganization on Xerox’s operations.” (Rpt. at ¶M.) In support of this conclusion, Buchwald cites various memoranda exchanged between KPMG and Xerox, and Xerox’s internal communications. In ¶ 0, Buchwald concludes, based on his review of public statements made by the defendants, that the statements were “misleading in terms of the nature of the information presented as well as the information regarding the adverse effects of the CBO reorganization which was omitted.” (Rpt. at ¶ 0.) After a review of Buchwald’s report and his deposition testimony, the court concludes that his proffered expert testimony should be excluded. Buchwald is not qualified as an expert by knowledge, skill, experience, training or education. Nor is his proffered testimony based on sufficient facts or data or the product of reliable principles and methods. Buchwald is offered as an expert based on his experience, which is not sufficient to qualify him as an expert in the areas in which he" }, { "docid": "20753343", "title": "", "text": "Xerox reinforced the overall result of Prof. Denis’s study, as opposed to introducing a bias in favor of Xerox. There is no indication here that the absence of an asset limit renders Prof. Denis’s expert report unreliable or unhelpful to the trier of fact. The plaintiffs argue that academic authority cited by Prof. Denis suggests that studies concerning corporate operational restructuring should be conducted over a significantly longer period of time than the time frame employed by Prof. Denis. However, Prof. Denis explained: “The time frame that is being analyzed in any study is governed by the question that the researcher is attempting to address. In this case, [the] time period that I looked at spans the [C]lass [P]eriod, so therefore it was the relevant time period to analyze.” (Denis Dep. at 84:10-15.) The plaintiffs do not explain how choosing a time frame that correlates to the years at issue in the case is arbitrary or an error. The plaintiffs also make an argument that Prof. Denis’s statement that the “CBO [Reorganization was a relatively small piece of the total restructuring effort” (Denis Rpt. at 13) is inconsistent with other statements in his report about the CBO Reorganization. Even if the plaintiffs are correct, this is not a basis for excluding his report or testimony. B. Probative Value; Prejudice The plaintiffs argue that Prof. Denis’s opinions on operational restructurings in general and Xerox’s operational restructuring in particular are not related to the key issue in the case, namely whether the defendants made materially false and misleading statements as alleged by the plaintiffs. However, the plaintiffs contend that the CBO Reorganization had a material negative impact on Xerox’s operations and there were materially false and misleading statements about that fact during the Class Period. Prof. Denis’s report, and specifically his analysis of comparable restructurings, speaks to the materiality of the alleged misstatements or omissions, an essential element of the plaintiffs’ claim. See San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., Inc., 75 F.3d 801, 808 (2d Cir.1996) (stating that to prevail on a Section 10(b) and Rule" }, { "docid": "18070635", "title": "", "text": "cannot conclude that, as a matter of law, when a corporation makes statements about a restructuring as a whole, it has no duty to disclose with respect to any of the components of that restructuring so long as the statements about the restructuring as a whole are literally true. Cf. Basic Inc. v. Levinson, 485 U.S. 224, 236, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (“Any approach that designates a single fact or occurrence as always determinative of an inherently fact-specific finding such as materiality, must necessarily be overinclusive or underinclusive.”). Here, the defendants’ argument that they had no duty to disclose is premised on the court finding that as a matter of law there is no duty to disclose under such circumstances. There is no analysis of whether disclosure of the allegedly omitted facts would have been viewed by a reasonable investor as having significantly altered the total mix of information available. Therefore, the court concludes that the defendants have not met their initial burden in moving for summary judgment as to this point. B. Full Disclosure The defendants argue, in the alternative, that if they did have a duty to disclose the impact of the CBO Reorganization they fully met that obligation. The court agrees with the defendants that they are not limited to a “truth-on-the-market defense.” Cf. Canino v. Citizens Utilities Co., 228 F.3d 154, 167 (2d Cir.2000) (Under the truth-on-the-market defense “[a] defendant may rebut the presumption that its misrepresentations have affected the market price of its stock by showing that the truth of the matter was already known.”). “[I]t is indisputable that there can be no omission where the allegedly omitted facts are disclosed.” In re Progress Energy, Inc., 371 F.Supp.2d 548, 552 (S.D.N.Y.2005). Furthermore, the identity of the individual or group disclosing the allegedly omitted information does not affect the disclosure analysis. See Iron Workers Local 16 Pension Fund v. Hilb Rogal & Hobbs Co., 432 F.Supp.2d 571, 580 (E.D.Va.2006) (“Where information about a company was made available in an analyst report, or by newspaper articles, any withholding of information by the company is" }, { "docid": "18070647", "title": "", "text": "statements about the diversion of the sales force for training and low sales productivity are or appear to be linked to the Sales Force Realignment. But the record shows that although the Sales Force Realignment announced on January 6, 1999 was described by Thoman at that time as something that would evolve over the next couple of years, Xerox began the planning and implementation of some aspects of the Sales Force Realignment during the first quarter of 1999. During that quarter, the sales force spent more time than usual out of the field attending training sessions associated with the new focus on industry selling. On April 16, 1999, Thomas Dolan sent an internal memorandum to Romeril concerning Xerox’s “poor sale activity level” in the first quarter and observed that: . In support of our industry focus and solutions delivery, we made significant investment in training key sales force and management early in order to realize a full year return and improve critical skills. Growth in training year-over-year ranged [from] 40% to 60% resulting in time out of the field. Memorandum from Thomas J. Dolan to Barry D. Romeril on Second Quarter/Second. Half IRX-PROD 0124539 (April 16, 1999)(Goldstein Decl. Ex. 18). Thus, the court concludes that information as to the negative impact of the CBO Reorganization on the performance of Xerox’s sales force was disclosed to the market prior to September 16,1999. 3. Ongoing Nature of the Problems The plaintiffs contend that the defendants disguised the ongoing nature of the problems associated with the CBO Reorganization. The plaintiffs have failed to 'create a genuine issue of material fact as to this contention. ¡ First, as reflected in the discussion of the two prior contentions, there' was a series of disclosures about problems associated with the CBO Reorganization from at the latest November 10, 1998 to at least August 16, 1999. These continuing disclosures conveyed that the problems were ongoing in nature. Second, while the defendants’ initial statements about the problems associated with the CBO Reorganization characterized the problems as temporary, the market was informed well before September 16,1999 that it would" }, { "docid": "18070627", "title": "", "text": "20(a) and Rule 10b-5 of the Exchange Act by misrepresenting the success of the Worldwide Restructuring. The plaintiffs contend that the defendants’ statements were materially false and misleading because they claimed the benefits of the Worldwide Restructuring without disclosing problems associated with the CBO Reorganization that negated those benefits. - The - plaintiffs claim the defendants were required to, but did not, disclose the negative impact of the CBO Reorganization on Xerox’s administrative operations in the areas of order processing, billing and .collections; the negative impact of the CBO Reorganization on the performance of Xerox’s sales force; and the ongoing nature of the problems associated with the CBO Reorganization. The defendants argue that they are entitled to summary judgment based on the fact that their statements about the Worldwide Restructuring were at all times accurate because the Worldwide- Restructuring produced millions of dollars- of benefits during the Class Period. Also, the defendants contend that they had no duty to disclose the operational problems associated with the CBO Reorganization but, despite not having a duty to do so, did fully disclose the allegedly concealed problems. In addition, the defendants argue, that they are entitled to summary judgment because the plaintiffs cannot establish'loss-causation. -v .- To prevail on a Section 10(b) and Rule 10b-5 claim, the plaintiffs müst prove six elements: - . • (1) a material misrepresentation (or omission); (2) scienter, i.e., a wrongful state of mind; (3) a connection with the purchase or sale of a security; (4) reliance, often referred,to in cases involving public securities markets (fraud-on-the-market cases) . as “transaction causation;.. (5) economic loss; and (6) “loss causation,” i.e., a causal connection between the material misrepresentation and the loss. - ■ Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (internal citations omitted). - . The court concludes that, even if - the defendants had a duty to disclose, the plaintiffs cannot show an actionable misrepresentation or omission-, and in addition, that the plaintiffs cannot establish loss causation.-- ■ . - A,. Duty to Disclose The defendants argue that there is" }, { "docid": "18070658", "title": "", "text": "impact of the customer administration restructuring ...” (Id.) The plaintiffs argue that the facts defendants have admitted establish loss causation with respect to the October 8, 1999 press release. The plaintiffs point to the fact that the defendants “concede that the press- release identifies the ‘ongoing impact of customer administration- [CBO] restructuring’ as one of the factors responsible for the disappointing earnings. And they do not dispute that the announcement of this decline in earnings caused the price of Xerox’s stock to drop 24.9%, or $10.65 per share, on October 8.” (Pi’s. Mem. in Opp. at 37.) This argument is in substance that loss causation is established simply because the announcement of the declining earnings caused the price of Xerox’s stock to drop. It is undisputed that during the September 22, 1999 teleconference Romeril stated that Xerox had significantly underestimated -the revenue impact in the first quarter of 1999 of the negative impact of the CBO Reorganization on the sales force. The plaintiffs fail to identify what new fraud-related information was included in the press release. “While a disclosure need not reflect every detail of an alleged fraud, it must reveal some aspect of it.” In re Omnicom Grp., Inc. Sec. Litig., 541 F.Supp.2d at 551. Thus, this argument is unavailing. The plaintiffs also contend that the October 8 press release was corrective because it revealed the' materialization of a risk that was previously undisclosed. They maintain that the defendants “concealed from investors the magnitude of the problem and its likely ultimate effects,” (Pi’s. Mem. in Opp. at 39), and “that Xerox’s October 8 press release concerning the expected earnings miss reveal[ed] the seriousness and magnitude of the problems caused by the CBO Reorganization, resulting in a 24.9% drop in the price of Xerox’s stock.” Id. In addition, the plaintiffs maintain, the defendants “intentionally misled investors by reiterating expectations of mid- to high-teens earnings per share growth, despite internal documents showing this was not possible.” Id. at 40. In support of this argument, the plaintiffs rely on Steiner v. MedQuist Inc., Civil No. 04-5487(JBS),. 2006 WL 2827740 (D.N.J. Sept. 29," }, { "docid": "18070630", "title": "", "text": "the •distinction has meaning only in certain contexts. For example, where the issue is whether an individual’s relationship to information imposed upon him a duty to disclose, the inquiry as to his duty is ■ quite distinct from the inquiry as to. the information’s materiality. -On the other hand, where the disclosure duty arises from the combination of a prior statement and a subsequent event, which, if not disclosed, renders the. prior statement false or misleading, the inquiries as to duty and materiality coalesce. The undisclosed information is material if there is a substantial likelihood .that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information available. If a reasonable investor would so regard the omitted fact, it is difficult to imagine a circumstance where the prior statement would not be rendered misleading in the absence of the disclosure. As Glazer [v. Formica Corp., 964 F.2d 149 (2d Cir. 1992) ] makes clear, one circumstance creating a duty to disclose arises when disclosure is necessary to make prior statements not misleading. Id. at 267-68 (citations omitted). The defendants argue that they had no duty to speak out about the CBO Reorganization’s problems, even assuming those problems would have been material to investors, because (i) the alleged misstatements refer to the Worldwide Restructuring as a whole, (ii) the defendants, never touted the benefits of the CBO Reorganization or any of the other individual initiatives that comprised the Worldwide Restructuring and (iii) there is no evidence that the defendants ever misstated the impact of the Worldwide Restructuring. The defendants contend that the law is clear that under such circumstances, they had no duty to disclose. They rely primarily on In re Raytheon Sec. Litig., 157 F.Supp.2d 131 (D.Mass.2001), and In re Winn-Dixie Stores, 531 F.Supp.2d 1334 (M.D.Fla.2007),. and they characterize Raytheon as directly on point. In Raytheon, the corporate defendant had undertaken “a massive consolidation and cost reduction program” in one of its segments, Raytheon Systems Company (“RSC”). 157 F.Supp.2d at 141. The plaintiff alleged that, the defendants never" }, { "docid": "18070629", "title": "", "text": "no evidence that their statements about the benefits of -the Worldwide Restructuring were false and also that théir statements about the‘benefits of the Worldwide Restructuring did- not create a duty to disclose information about the CBO Reorganization. With respect to the defendants’ argument concerning a duty to disclose, “a duty to update opinions and projections máy arise if the original opinions or projections have become misleading as the result of intervening events.” In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir.1993). , But a corporation is not required to disclose a fact merely because a reasonable investor would very much like to know that fact. Rather, an omission is actionable under the securities laws only when the corporation is subject to a duty to disclose the omitted facts: As Time'Warner pointedly reminds us, we have not only emphasized the importance of ascertaining a duty to disclose when omissions are at issue but have also drawii a distinction between the concepts of a duty to disclose and materiality. It appears, however, that the •distinction has meaning only in certain contexts. For example, where the issue is whether an individual’s relationship to information imposed upon him a duty to disclose, the inquiry as to his duty is ■ quite distinct from the inquiry as to. the information’s materiality. -On the other hand, where the disclosure duty arises from the combination of a prior statement and a subsequent event, which, if not disclosed, renders the. prior statement false or misleading, the inquiries as to duty and materiality coalesce. The undisclosed information is material if there is a substantial likelihood .that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information available. If a reasonable investor would so regard the omitted fact, it is difficult to imagine a circumstance where the prior statement would not be rendered misleading in the absence of the disclosure. As Glazer [v. Formica Corp., 964 F.2d 149 (2d Cir. 1992) ] makes clear, one circumstance creating a duty to disclose arises when" }, { "docid": "18070645", "title": "", "text": "disclose that implementation of the CBO Reorganization had a negative impact on the performance of Xerox’s sales force. The record shows, however, that information was disclosed to the market prior to September 16, 1999 about the negative impact that the CBO Reorganiza^ tion had on the sales force. The plaintiffs contend that the defendants attributed problems- to -the • Sales Force Realignment rather than to the CBO Reorganization in an attempt to mask problems with the CBO Reorganization. Then, on or around April 27, 1999, when Thoman was talking to Investor’s Business Daily about Xerox’s strategy for a focus on industry selling, Thoman attributed Xerox’s drop in revenue for the preceding quarter to both “Xerox’s ongoing restructuring and the realignment of its sales force.” Michael Lyster, Digital Copiers: Xerox Ticket to Networking Service Plans, Investor’s Bus. Daily, Apr. 27, 1999, at A6, IRX-PROD-0050433 (quoting Rick Thoman) (Goldstein Decl. Ex. 43). Also, Buehler’s May 3, 1999 memorandum sent to Thomas Dolan (with copies to Romeril and Thoman) reviewing issues related to the CBO Reorganization mentioned “Sales Coverage/Productivity,” Memorandum from William F. Buehler to T. Dolan on 3 + 9 Direction IRX-PROD 0252096 (May 3, 1999)(Levine Decl. Ex. 52), and an internal Xerox document prepared in May 1999 made a reference to the CBRs in Chicago being a problem. Then, at Xerox’s annual Investor Conference on May 14, 1999, Romeril spoke about problems with the CBO Reorganization. Romeril disclosed that Xerox had reduced the headcount at too fast a rate and that it was “too much change, too fast.” Barry Romeril, Xerox Corporation Investor Conference 122:23-123:15 (May 14, 1999) (Goldstein Decl. Ex. 45). At the same conference he stated: “[T]here was no question that we had, as we rolled out our G & A program, individual areas where we caused some lack of focus on our sales force because of our G & A activities. For example, we talked about our Chicago center.” Id. at 136:24-137:4. This is a concern highlighted by Kenneth Baugher in his September 1999 analysis of the problems that had arisen with the CBO Reorganization. Many of the" } ]

[ { "docid": "9990417", "title": "", "text": "Section 117(a) of the Internal Revenue Code of 1939 and Section 1222 of the 1954 Code. This decision turns on the provisions of Section 117 (f) of the 1939 Code and Section 1232 of the 1954 Code. *****8 The receipt of payment on ordinary notes or debts (other than securities with interest coupons or notes in registered form) is not a sale or exchange which is accorded treatment as a capital gain or loss. Fairbanks v. United States, 306 U.S. 436, 59 S.Ct. 607, 83 L.Ed. 855 (1939); Felin v. Kyle, supra. The application of this general rule is not altered by the fact that the notes, paid in the currency received by plaintiff, were themselves received in exchange for property. Osenbach v. Commissioner, 198 F.2d 235 (4th Cir. 1952) and Bingham v. Commissioner, supra. The sections of the Codes last cited are a congressional abrogation of the general rule and are to be narrowly applied. Corn Products Refining Co., supra. The note or other indebtedness must show on its face that it is registered. Victor A. Miller, 32 T.C. 954 (1959). It is undisputed that the notes involved here were not in registered form on or prior to March 1, 1954, and were issued prior to January 1, 1955. However, in an effort to avoid the plain statutory requirement, plaintiff contends that the purpose of the limitation was simply to prevent original issue discount in the nature of interest from receiving capital gain treatment. Plaintiff points to Senate Report No. 1622, 83rd Cong., 2d Sess. 112, U.S.Code Cong, and Adm.News, 1954, p. 4629, and argues that the validity of its position is demonstrated by the fact that Section 1232 of the 1954 Code treats all promissory notes alike on retirement and provides new rules to insure that gain attributable to original issue discount is taxed as ordinary income. The report cited indicates quite clearly that the problem of original discount arose after enactment of the 1939 Code and that new provisions were inserted in Section 1232 of the 1954 Code to eliminate questions which had arisen under the 1939" } ]

[ { "docid": "20769161", "title": "", "text": "a Memorandum Opinion of this Court; Gooding Amusement Co. v. Commissioner, 236 F. 2d 159 (C.A. 6, 1956), affirming 23 T.C. 408 (1954); C. M. Gooch Lumber Sales Co., 49 T.C. 649 (1968). We think that, on the basis of the record before us, petitioners have carried their burden in this respect and we conclude, and have so found, that the notes in question constituted bona fide indebtedness in the hands of Ovid Birmingham. We see no reason to detail the various elements which led us to this factual conclusion, particularly since, in any event, we conclude that respondent should prevail on his alternative contention. We reject petitioners’ assertion that if tbe notes were bona fide indebtedness in tbe hands of Ovid Birmingham, they automatically retained this character after the transfer. The nature of the instruments in the hands of petitioners, for tax purposes, is likewise a question of fact. There is no dispute as to the subsidiary factual elements involved. The dispute revolves around the ultimate factual determination to be made and we are satisfied that, on all the facts and circumstances herein, the notes did not constitute bona fide indebtedness after the transfer from Ovid to the petitioners. Circumstances somewhat similar to those herein arose in Jewell Ridge Coal Corporation v. Commissioner, 318 F. 2d 695 (C.A. 4, 1963), affirming a Memorandum Opinion of this Court. There the taxpayer (Jewell) desired to purchase a railroad (Railroad) incident to its proposed operation of a coal mine. The purchase contract provided for acquisition of all existing Railroad stock plus assignment to the purchaser of Railroad’s entire indebtedness (represented by notes and open account) to its three shareholders. At that time, the books of Railroad showed a substantial surplus and even the scrap or salvage value of Railroad’s assets exceeded its liabilities by approximately $13,000. Of the $132,500 paid, $127,322.10 (or 96 percent) represented the face amount of such indebtedness and was allocated thereto and the remaining $5,177.90 (or 4 percent) was allocated to the stock. In a Memorandum Opinion denying petitioner’s subsequent claim to a bad debt deduction for the" }, { "docid": "5249166", "title": "", "text": "kept. The note, though, provided that it was registered, that it was transferable only on the books of the corporation by the registered owner, and that the note had to be presented for endorsement of payments of principal thereon. We think that these provisions in the notes were sufficient to establish that the notes were in registered form. In Gerard v. Helvering, 120 F. 2d 235, 236 (C. A. 2), a case relied upon by the respondent, the court in holding for the Commissioner said that “The purpose [of having a bond in registered form] is to protect the holder by making invalid unregistered transfers, and the bond always so provides on its face.” The bond in that case contained no such provision and the taxpayer was attempting to establish that the obligation was in registered form because the corporation kept books, of account upon which the debt appeared. The note in the case at bar did provide that it was registered and that it could only be transferred on the books of the corporation. The purpose of registration was therefore attained. See also Rieger v. Commissioner, 139 F. 2d 618, 621 (C. A. 6); George Peck Caulkins, 1 T. C. 656, 661; Edith K. Timken, 6 T. C. 483. The respondent further asserts that the corporation did not believe that it was issuing notes in registered form since it did not affix the revenue stamps required by sections 1800 and 1801 of the Code. We are not concerned here, however, with the failure of the corporation to comply with those sections of the Code. And we think that the intention of the corporation to issue registered notes, as manifested by the clear language of the note, is not nullified by its failure to comply with the stamp tax provisions. We conclude, therefore, that the note issued by the corporation was in registered form. The respondent alternatively contends that even if the note was in registered form and the technical requirements of section 117 (f) have been met, in substance the amount received was in retirement of the original bond" }, { "docid": "20744124", "title": "", "text": "would not app.ear to constitute “registration” within-the meaning of the statute. The term “in registered form” as used in the statute has reference to those evidences of indebtedness title to which cannot be transferred without registration. See Gerard v. Belvering, (C.A. 2) 120 F. 2d 235, affirming 40 B.T.A. 64; Victor A. Miller, 32 T.C. 954, reversed on other issues (C.A. 10) 285 F. 2d 843; and Toye v. United States, (E.D. La.) 157 F. Supp. 123. The requirement of the Bureau of Accounts, pursuant to the provisions of the Settlement of War Claims Act of 1928 as amended, presupposes a transfer of title, and the requirement Is that proof of the transfer be furnished prior to payment. Wilkens testified that the payments made to the petitioner in 1954 andi 1955 were made out of installments No. 2 and 3 paid by the German Government on April 1, 1854, and April 1, 1955, respectively, and it may be that these installments were the source, in whole or in part, of the funds used by the Bureau of Accounts to make the payments. However this does not mean that the amounts received by the petitioner are themselves to be considered as being payments on rell reman t of the bonds issued by the German Government to the United States." }, { "docid": "8280169", "title": "", "text": "similar evidences of indebtedness shall be considered as amounts received in exchange therefor.” (Italics added.) However, we find it unnecessary to pass on this interpretation of the statute, or to decide whether the award is “similar” if this interpretation is correct. It is perfectly clear that, in any event, the awards were not “issued” by a “government or political subdivision thereof” as required. We agree with the Commissioner and the Tax Court that the Mixed Claims Commission was no more a political subdivision of Germany than it was of the United States. Moreover, the awards do not comply with the additional requirement that an obligation issued before January 1, 1955 have interest coupons attached or be in registered form. It is stipulated that there are no attached interest coupons. To be in “registered form” the obligation must be transferable only by entry on the books or records of the debtor or its agent. Gerard v. Helvering, 120 F.2d 235 (2d Cir. 1941). Furthermore, as this Court held in Gerard, since “the purpose is to protect the holder by making invalid unregistered transfers, * * * the bond always so provides upon its face.” Id., 236. The awards of the Mixed Claims Commission were not registered in books kept by the debtor (Germany); and the Tax Court was certainly correct in rejecting any argument that the United States government, specifically the Treasury Department, was an agent of Germany for this purpose. Indeed, it is far more reasonable to consider the Treasury Department a collection and disbursing agent for the awardholders. Even if this were not so, there is no inscription on the awards which indicates non-transferability, and the petitioner does not suggest that the awards are not in fact freely transferable. The Treasury Department regulation requiring proof of ownership is merely an administrative measure intended to assure that payments are made only to bona fide holders of awards or owners of interests therein. It does not purport to affect transferability of title and. petitioner does not argue that the regulations actually affect it. Such bookkeeping practices do not satisfy the “registered" }, { "docid": "10958235", "title": "", "text": "in determining whether the transfer of property to a thinly capitalized corporation constitutes a bona fide sale, rather than a mere contribution to capital, is the anticipated source of payment to the transferor. Gilbert v. Commissioner, 262 F. 2d 512, 514 (C.A. 2, 1959), affirming a Memorandum Opinion of this Court, certiorari denied 359 U.S. 1002 (1959). If payment to the transferor is dependent solely upon the success of an untried, undercapitalized business, the prospects of which are uncertain, the transfer of property raises a strong inference that it is, in fact, an equity contribution. But cf. Miller’s Estate v. Commissioner, 239 F. 2d 729, 733 (C.A. 9, 1956), reversing 24 T.C. 923 (1955); Sheldon Tauber, 24 T.C. 179, 181-182 (1955); and Ainslie Perrault, 25 T.C. 439 (1955), affirmed per curiam 244 F. 2d 408 (C.A. 10, 1957), where repayment of the notes involved was dependent upon the continued success of an established business with a good earnings record and excellent future prospects. At the time of the transfer of the Burr Oaks property to petitioner, its business prospects can only be described as speculative and uncertain. Elkind, Watkins, and Eitz realized that the only way petitioner could raise the $100,000 needed by it for improvements would be from sales of lots. It is obvious that the only hope that Elkind, Watkins, and Eitz had of obtaining repayment of the so-called promissory notes depended upon the successful development and sale of the lots in the Burr Oaks property. Despite the fact that the respective interests of Elkind, Watkins, and Eitz in petitioner were represented by what purported on their face to be promissory notes in the principal amount of $110,000, the evidence before us indicates that it was the intent of all concerned with the affairs of petitioner that these instruments would give Elkind, Watkins, and Ritz a continuing interest in petitioner’s business. The instruments issued by petitioner to Elkind, Watkins, and Ritz recited that they were to mature in 2 years from the date of issuance. However, after a review of the entire record, we believe that it was" }, { "docid": "4838903", "title": "", "text": "the face of each note above the printed word “bearer,” so as to read, “Pay to the order of Registered Bearer . . . Payable at our office . . . .” Notations of ownership of the notes in question were made in the records of Miller-duPont, Inc. It appears that the registration was bona fide, and respondent does not urge otherwise. Registration, for practical purposes, means that the obligation runs only to the registered' owner. The primary purpose is to safeguard the investor or bolder by making unregistered transfers ineffective. To accomplish this, the note or other evidence of indebtedness must show on its face that it is registered. Gerard v. Helvering, 120 F. 2d 235 (C.A. 2, 1941), affirming 40 B.T.A. 64 (1939). Likewise, the phrase “in registered form” implies, at least, that the ownership of the instrument is listed in an appropriate record or register maintained for that purpose by the issuing corporation. While in the instant case the steps taken to register the obligations might be termed somewhat informal, we are satisfied that the purpose of registration was satisfied as a practical matter, and that the provisions of section 117(f) were complied with. We hold, therefore, that the notes involved were “in registered form” within the meaning of sections 117(f) and 1232 of the 1939 and 1954 Codes, respectively, and, as a result, the gain realized upon retirement thereof was entitled to capital gains treatment. Carl Oestreicher, supra at 14, and cases cited therein. Respondent relies on Gerard v. Helvering, supra. We think it distinguishable from the instant case on the facts since, in Gerard, there appears to have been no registration, formal or informal; the bond does not appear to have been stamped as “registered,” and the only record was the carrying of the bond on the books of the issuer as a liability. Decision will he entered under Bule 50. SEC. 113. adjusted BASIS FOR DETERMINING GAIN OR LOSS. (a) Basis (Unadjusted) op Peopbeti. — The basis of property shall be the cost of such property; except that— (13) Paetnbeship. — If the property" }, { "docid": "16830373", "title": "", "text": "dividend is paid and surrendered upon payment of the final dividends.” Opposite the signature of the Special Deputy Superintendent of Banks of Ohio is printed the injunction: “Important — Do not lose this Certificate. Dividends cannot be collected without same.” On the back of the certificate is printed an assignment form similar to that generally used in connection with the transfer of stock certificates. Beneath this assignment form is printed: “Above assignment accepted and entered this ...... day of ......, 193... L. D. Fulton, Superintendent of Banks of Ohio, by ....... Special Deputy Superintendent of Banks, in charge of the Liquidation of The Union Trust Company of Dayton, Ohio.” Underneath this form of acceptance and entry of the assignment is printed a table for endorsement of the dividends paid on the certificate, showing the number, percentage and date of the payment of the dividends. Citing its previous decision in Mary D. Gerard v. Com’r of Int. Rev. 40 B.T.A. 64, affirmed Gerard v. Helvering, 2 Cir., 120 F.2d 235, the Board of Tax Appeals found that the Union Trust Company certificates of claim bore no interest coupons, and that there is no evidence that they were registered; and that, under the doctrine of noscitur a sociis, the certificates are not to be included in the statutory classification “bonds, debentures, notes, or certificates or other evidences of indebtedness issued by any corporation.” Further interpretation by the Board was that Congress, in using the word “other,” intended to limit the scope of the term “evidences of indebtedness.” Its language in Norman Buckner v. Com’r of Int. Rev., 43 B.T.A. 958, was reiterated: “We can not accept the view that the careful and exclusive language of (he section under consideration was designed to include anything so far afield as a receiver’s certificate of proof of claim.” The tax tribunal reached the conclusion that the specimen certificate was neither a certificate or other evidence of indebtedness “issued by any corporation,” nor a certificate “issued by a government or political subdivision thereof.” We are unable to concur in the reasoning and conclusions of the Board" }, { "docid": "5249165", "title": "", "text": "trust with Oscar’s widow. Max Heil was not related to any of the Oestreichers. In 1945, the petitioner received $7,031.50 as a reduction of the principal amount payable under the note. Prior to January 1, 1945, the petitioner had recovered, through payments, the basis for determining gain or loss on the note so that the amount received in 1945 was taxable gain. He asserts that the instruments meet the requirements of section 117 (f) of the Code since they are in registered form and that therefore the amount received in 1945 was taxable as capital gain rather than ordinary income. The respondent contends that the instruments were not in registered form and therefore the amounts received in 1945 were ordinary income. The principal argument of the respondent, in support of his contention that the notes were not in registered form is that a formal register was not kept by the corporation. The corporation maintained books of account in which the payments made on the notes were recorded, but these records appeared to be rather informally kept. The note, though, provided that it was registered, that it was transferable only on the books of the corporation by the registered owner, and that the note had to be presented for endorsement of payments of principal thereon. We think that these provisions in the notes were sufficient to establish that the notes were in registered form. In Gerard v. Helvering, 120 F. 2d 235, 236 (C. A. 2), a case relied upon by the respondent, the court in holding for the Commissioner said that “The purpose [of having a bond in registered form] is to protect the holder by making invalid unregistered transfers, and the bond always so provides on its face.” The bond in that case contained no such provision and the taxpayer was attempting to establish that the obligation was in registered form because the corporation kept books, of account upon which the debt appeared. The note in the case at bar did provide that it was registered and that it could only be transferred on the books of the corporation." }, { "docid": "20119107", "title": "", "text": "October 1952 for a fraction of their face amount when he acquired control of the corporation that had issued said notes. Shortly after this acquisition, the individual caused the corporation to reissue the notes in registered form as debentures. This Court held (1) that the principal purpose of acquiring the notes was so that the individual could obtain capital gains treatment when the corporation redeemed the notes with earnings derived .from a profitable business which the individual transferred to the corporation, and (2) that the allowance of capital gains treatment to the individual was prohibited under the predecessor of sec. 269, I.R.C. 1954. Neither the notes which Huntsinger transferred to the three exempt organizations nor reproductions of the notes were introduced into evidence. Nor were any of the terms or provisions of the notes so introduced. Therefore, there is no proof before us (1) as to whether the notes could have been validly transferred or assigned other than by entry upon petitioner’s books or (2) as to whether the notes themselves had “a definite number and a definite arrangement for assignment” (cf. Edith K. Timken, 6 T.C. 483, 487 (1946)). See Rieger v. Commissioner, 139 F. 2d 618, 621 (C.A. 6, 1943), reversing 47 B.T.A. 727 (1942). The stipulation of facts provides that the notes were endorsed to Huntsinger when he acquired them in 1953 and that Huntsinger endorsed the notes in 1958 when he; donated them to the exempt organizations. However, the stipulation that the notes were so endorsed does not help respondent to meet his burden of proof; for despite the fact of endorsement it is possible (1) that the notes themselves provided that they could be transferred only by appropriate notation on petitioner’s books and (2) that the notes were, in fact, transferred pursuant to such appropriate notation. Since respondent failed to prove that the notes were not in registered or coupon form, Huntsinger, therefore, would not have received ordinary income had the notes been redeemed from him. Seth M. Milliken, 15 T.C. 243, 247 (1950), affirmed on other grounds 196 F. 2d 135 (C.A. 2, 1952)," }, { "docid": "16334625", "title": "", "text": "the amounts received constituted capital gain. There is no argument as to the length of time the notes were held. In our opinion the petitioners’ views may not be sustained, for there is no contention that the notes carried interest coupons and nothing in the record indicates that they were in registered form, within the meaning of the statutory expression. On this question the respondent relies primarily upon Gerard v. Helvering, 120 Fed. (2d) 235, while the petitioner relies equally firmly upon Stoddard v. Commissioner, 141 Fed. (2d) 76, from the same Circuit Court of Appeals, the Second Circuit. In the Gerard case, the court construed the statutory expression “in registered form,” and in our opinion very pertinently and correctly defined it as follows: * * * Since the bond had no coupons she cannot succeed unless it was “in registered form,” a phrase whose meaning in this context is entirely plain. It refers to the common practice in the issuance of corporate bonds which allows the holder of one or more coupon bonds of a series the option to surrender them and have one bond “registered” upon the books of the obligor or of a transfer agent; or the holder may subscribe for such a bond in the first place. The purpose is to protect the holder by making invalid unregistered transfers, and the bond always so provides upon its face. The mere fact that the debtor keeps books of account upon which the debt appears is altogether immaterial; to construe the statute as the taxpayer asks would in effect make the payment of any corporate debt — “evidence of indebtedness” — a “retirement” of “capital assets,” for almost all corporations keep books. It is scarcely necessary to labor the answer to so plain a misinterpretation. It will be noted that under the above language petitioners’ reliance upon the fact that the obligations here in question were at all times entered, noted, and carried in the books, records, and accounts of the obligor corporation can not stand; nor is record in the county register compliance with the statute. Petitioners," }, { "docid": "4838902", "title": "", "text": "the ambit of the statute at the time of issuance. Prior to April 1, 1952, said notes bore no reference to the subject of registration. We think, however, that the law is now clear that the evidence of indebtedness may be put into registered form subsequent to issuance. Sec. 1232(a) (1) of the 1954 Code. Lurie v. Commissioner, 156 F. 2d 436 (C.A. 9, 1946). While Lurie reverses 4 T.C. 1065, we have followed the reversal in Carl Oestreicher, 20 T.C. 12, 14 (1953). The narrow question presented, therefore, is whether the notes in controversy were in registered form after issuance by Miller-duPont, Inc. The record shows that on or about April 1, 1952, the hoard of directors of the obligor corporation, Miller-duPont, Inc., of which petitioner was president, authorized the registration of previously issued Primrose refunding and Cooper purchase notes. Shortly thereafter, the two Primrose notes paid in 1954 and the Cooper notes paid in 1953 and 1954, were presented to the secretary of the obligor corporation and she stamped the word “registered” on the face of each note above the printed word “bearer,” so as to read, “Pay to the order of Registered Bearer . . . Payable at our office . . . .” Notations of ownership of the notes in question were made in the records of Miller-duPont, Inc. It appears that the registration was bona fide, and respondent does not urge otherwise. Registration, for practical purposes, means that the obligation runs only to the registered' owner. The primary purpose is to safeguard the investor or bolder by making unregistered transfers ineffective. To accomplish this, the note or other evidence of indebtedness must show on its face that it is registered. Gerard v. Helvering, 120 F. 2d 235 (C.A. 2, 1941), affirming 40 B.T.A. 64 (1939). Likewise, the phrase “in registered form” implies, at least, that the ownership of the instrument is listed in an appropriate record or register maintained for that purpose by the issuing corporation. While in the instant case the steps taken to register the obligations might be termed somewhat informal, we are" }, { "docid": "4838901", "title": "", "text": "$2,500 in 1952 and 1953, respectively, permitted a complete recovery of the basis of the Cooper purchase notes and resulted in the realization by petitioner of gain in the amount of $1,015 for the taxable year 1953, rather than the sum of $130 as determined originally. We think the record supports respondent’s position with respect to the basis of the Cooper notes, and petitioner does not appear to contest the issue. We accordingly hold for respondent on this factor. III. Registration of Primrose and, Coof&r Notes. Respondent contends that since the Primrose and refunding Cooper purchase notes did not contain wording indicating that transfers were invalid unless registered on the books of the obligor corporation, Miller-duPont, Inc., said notes were not issued “in registered form” within the meaning of sections 111(f) and 1232(a) (1) of the 1939 and 1954 Codes, respectively, and hence the maturity payments received by petitioners in excess of the basis of the notes were taxable as ordinary income. We disagree. Admittedly, the notes in question were not in registered form within the ambit of the statute at the time of issuance. Prior to April 1, 1952, said notes bore no reference to the subject of registration. We think, however, that the law is now clear that the evidence of indebtedness may be put into registered form subsequent to issuance. Sec. 1232(a) (1) of the 1954 Code. Lurie v. Commissioner, 156 F. 2d 436 (C.A. 9, 1946). While Lurie reverses 4 T.C. 1065, we have followed the reversal in Carl Oestreicher, 20 T.C. 12, 14 (1953). The narrow question presented, therefore, is whether the notes in controversy were in registered form after issuance by Miller-duPont, Inc. The record shows that on or about April 1, 1952, the hoard of directors of the obligor corporation, Miller-duPont, Inc., of which petitioner was president, authorized the registration of previously issued Primrose refunding and Cooper purchase notes. Shortly thereafter, the two Primrose notes paid in 1954 and the Cooper notes paid in 1953 and 1954, were presented to the secretary of the obligor corporation and she stamped the word “registered” on" }, { "docid": "22158998", "title": "", "text": "the essential characteristics of “debentures” or “certificates of indebtedness,” as those terms are used in the statute. General Motors Acceptance Corp. v. Higgins, supra; Niles-Bement-Pond Co. v. Fitzpatrick, supra. And in determining the scope of the statute, which has remained substantially unchanged since its first enactment, the Treasury’s interpretations of it are entitled to great weight. White v. Winchester Club, 315 U. S. 32, 41. The administrative history of the statute establishes that until 1947, when the General Motors case, supra, was decided, only those instruments were considered subject to the “debenture” tax which were issued (1) in series, (2) under a trust indenture, and (3) in registered form or with coupons attached. In other words, that tax was considered to apply only to marketable corporate securities, as that term is generally understood. Conversely, corporate promissory notes lacking any of those features, such as those issued by respondent, were taxed at the lower promissory note rate until that tax was repealed in 1924, and were not taxed thereafter until the Government's success in the General Motors case in 1947. As early as 1918 the Treasury, in distinguishing instruments taxable at the “bond” and “debenture” rate from those taxable at the lower “promissory note” rate, then still in force, drew the line as follows: “(3) Instruments containing the essential features of a promissory note, but issued by corporations in numbers under a trust indenture, either in registered form or with coupons attached, embodying provisions for acceleration of maturity in the event of any default by the obligor, for optional registration in the case of bearer bonds, for authentication by the trustee, and sometimes for redemption before maturity, or similar provisions, are bonds within the meaning of the statute, whether called bonds, debentures, or notes. However, a short-term instrument, although issued by a corporation under a trust indenture, may be regarded as a note if every instrument of such issue both (a) is payable to bearer and incapable of registration and (5) lacks interest coupons and so requires presentation upon each payment of interest.” T. D. 2713, May 14, 1918, 20 Treas." }, { "docid": "8280168", "title": "", "text": "as amounts received in exchange therefor, and as giving rise to capital gain (or loss). See 3B, Mertens, Federal Income Taxation, § 22.94 (1958). The section is expressly limited to “bonds, debentures, notes, or certificates or other evidences of indebtedness” issued by a “corporation, or government or political subdivision thereof.” Moreover, the 1954 Code retains the requirement of its 1939 predecessor that in order to qualify for capital gains treatment the bonds or other specified evidences of indebtedness must bear interest coupons or be “in registered form” if they were issued before January 1, 1956. 26 U.S.C. § 1232. The Commissioner argues that Section 1232 contemplates a close category of obligations, i. e., that “other evidences of indebtedness” refers to obligations similar to the four classes specifically denominated, and concludes the Mixed Claims Commission award in question is dissimilar. See H.Rep.No.704, 73d Cong., 2d Sess., p. 31, which accompanied the provision (Section 117(f)) originally enacted in 1934 anticipating Section 1232 which states: “Subsection (f) provides that amounts received upon the retirement of corporate bonds and similar evidences of indebtedness shall be considered as amounts received in exchange therefor.” (Italics added.) However, we find it unnecessary to pass on this interpretation of the statute, or to decide whether the award is “similar” if this interpretation is correct. It is perfectly clear that, in any event, the awards were not “issued” by a “government or political subdivision thereof” as required. We agree with the Commissioner and the Tax Court that the Mixed Claims Commission was no more a political subdivision of Germany than it was of the United States. Moreover, the awards do not comply with the additional requirement that an obligation issued before January 1, 1955 have interest coupons attached or be in registered form. It is stipulated that there are no attached interest coupons. To be in “registered form” the obligation must be transferable only by entry on the books or records of the debtor or its agent. Gerard v. Helvering, 120 F.2d 235 (2d Cir. 1941). Furthermore, as this Court held in Gerard, since “the purpose is to protect" }, { "docid": "20769160", "title": "", "text": "of the 1954 Code. The basic thrust of that section is to designate payments in retirement of certain “evidences of in debtedness” as having been received in an “exchange,” usually resulting in capital gains or loss treatment. Respondent argues that the payments are instead taxable as dividends under sections 301 and 316. He urges that the funds represented by the purported notes were, in reality, capital contributions by Ovid to the corporation and that, consequently, in purchasing such notes, petitioners actually acquired equity interests. Alternatively, he contends that, even if we were to characterize the notes as bona fide indebtedness in the hands of Ovid, such characterization should not automatically carry over to petitioners via their purchase. Thus, respondent insists that petitioners never negotiated for the notes per se and, at all times, intended them to represent contributions to the capital of the corporation. The question involved in respondent’s first contention is essentially one of fact, with the burden of proof upon the taxpayer. Gilbert v. Commissioner, 262 F. 2d 512 (C.A. 2, 1959), affirming a Memorandum Opinion of this Court; Gooding Amusement Co. v. Commissioner, 236 F. 2d 159 (C.A. 6, 1956), affirming 23 T.C. 408 (1954); C. M. Gooch Lumber Sales Co., 49 T.C. 649 (1968). We think that, on the basis of the record before us, petitioners have carried their burden in this respect and we conclude, and have so found, that the notes in question constituted bona fide indebtedness in the hands of Ovid Birmingham. We see no reason to detail the various elements which led us to this factual conclusion, particularly since, in any event, we conclude that respondent should prevail on his alternative contention. We reject petitioners’ assertion that if tbe notes were bona fide indebtedness in tbe hands of Ovid Birmingham, they automatically retained this character after the transfer. The nature of the instruments in the hands of petitioners, for tax purposes, is likewise a question of fact. There is no dispute as to the subsidiary factual elements involved. The dispute revolves around the ultimate factual determination to be made and we are" }, { "docid": "4838904", "title": "", "text": "satisfied that the purpose of registration was satisfied as a practical matter, and that the provisions of section 117(f) were complied with. We hold, therefore, that the notes involved were “in registered form” within the meaning of sections 117(f) and 1232 of the 1939 and 1954 Codes, respectively, and, as a result, the gain realized upon retirement thereof was entitled to capital gains treatment. Carl Oestreicher, supra at 14, and cases cited therein. Respondent relies on Gerard v. Helvering, supra. We think it distinguishable from the instant case on the facts since, in Gerard, there appears to have been no registration, formal or informal; the bond does not appear to have been stamped as “registered,” and the only record was the carrying of the bond on the books of the issuer as a liability. Decision will he entered under Bule 50. SEC. 113. adjusted BASIS FOR DETERMINING GAIN OR LOSS. (a) Basis (Unadjusted) op Peopbeti. — The basis of property shall be the cost of such property; except that— (13) Paetnbeship. — If the property was acquired, after February 28, 1913, by a partnership and the basis Is not otherwise determined under any other paragraph of this subsection, then the basis shall be the same as It would be In the hands of the transferor, Increased In the amount of gain or decreased In the amount of loss recognized to the transferor upon such transfer under the law applicable to the year in which the transfer was made. If the property was distributed in kind by a partnership to any partner, the basis of such property In the hands of the partner shall be such part of the basis In his hands of his partnership Interest as Is properly allocable to such property. SEC. 117. CAPITAL GAINS AND LOSSES. (f) Retirement of Bonds. Etc. — For tie purposes of this chapter, amounts received by the holder upon the retirement of bonds, debentures, notes, or certificates or other evidences of indebtedness issued by any corporation (including those issued by a government or political subdivision thereof), with interest coupons or in registered" }, { "docid": "1396141", "title": "", "text": "223 (1931); Fuller v. Commissioner, 313 F. 2d 73 (C.A. 6, 1963), affirming on this issue a Memorandum Opinion of this Court. However, if the petitioner can show that the determination by the Commissioner was arbitrary and unreasonable, the burden of proof is shifted to the Commissioner. Helvering v. Taylor, 293 U.S. 507 (1935). The petitioner apparently contends that the Commissioner’s determination was arbitrary and unreasonable — because of the alleged manner in which his return was selected for audit, and because his deductions were denied without citing specific statutory authority for doing so. We must decide whether the determination was arbitrary. Tbe petitioner claimed tbat be bad bad various disputes witb Internal Revenue Service employees over bis 1967 Federal income tax return, and tbat be bad been prohibited by tbe district director from appearing before the Commissioner’s agents as a tax adviser. Tbe petitioner suggested that bis return was selected for audit because of those controversies. However, tbe record contains absolutely no evidence as to tbe reasons for having selected his return for audit and no proof that his return was selected for audit because of those controversies. In view of tbe petitioner’s failure to support bis allegations, we do not even reach tbe question of whether tbe allegations, if established by competent proof, would be sufficient to shift to the Commissioner the burden of proving tbe determination to be correct. See Crowther v. Commissioner, 269 F. 2d 292, 293 (C.A. 9, 1959), reversing on other issues 28 T.C. 1293 (1957); Philip F. Flynn, 40 T.C. 770 (1963). Tbe apparent thrust of the petitioner’s second argument is tbat the Commissioner may assess deficiencies only when be has specific information tbat a claimed deduction is not permitted, and tbat the Commissioner cannot find a deficiency merely because tbe petitioner does not attempt to furnish proof of his claimed deduction. We find' no merit in this argument. Taxpayers have no inherent right to deductions ; they are matters of legislative grace. Interstate Transit Lines v. Commissioner, 319 U.S. 590, 593 (1943); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440" }, { "docid": "5249164", "title": "", "text": "The note was transferable only, on the books of the corporation at its office by the registered holder or his authorized attorney upon the surrender of the note properly indorsed. It provided further that it was necessary to present the note “for endorsement of payments of principal thereon simultaneously with such payments.” The note was signed by Carl Oestreicher, as president, and Moritz Oestreicher, as treasurer of the corporation. The directors of the corporation were Carl, Moritz, and William Oestreicher. The stock of the corporation consisted solely of common stock which was owned by Max Heil (75 shares) and Clemons, Inc. (925 shares). Clemons, Inc., is a Delaware corporation whose capital stock at January 3, 1945, consisted of 4,100 shares of common stock owned equally by Carl, William, and Moritz Oestreicher and the estates of Oscar and Isaac Oestreicher. Carl, William, Moritz, the deceased Isaac, and the deceased Oscar Oestreicher were all brothers. Carl and William were the trustees of the Isaac Oestreicher trust along with Isaac’s widow and the trustees of the Oscar Oestreicher trust with Oscar’s widow. Max Heil was not related to any of the Oestreichers. In 1945, the petitioner received $7,031.50 as a reduction of the principal amount payable under the note. Prior to January 1, 1945, the petitioner had recovered, through payments, the basis for determining gain or loss on the note so that the amount received in 1945 was taxable gain. He asserts that the instruments meet the requirements of section 117 (f) of the Code since they are in registered form and that therefore the amount received in 1945 was taxable as capital gain rather than ordinary income. The respondent contends that the instruments were not in registered form and therefore the amounts received in 1945 were ordinary income. The principal argument of the respondent, in support of his contention that the notes were not in registered form is that a formal register was not kept by the corporation. The corporation maintained books of account in which the payments made on the notes were recorded, but these records appeared to be rather informally" }, { "docid": "8280170", "title": "", "text": "the holder by making invalid unregistered transfers, * * * the bond always so provides upon its face.” Id., 236. The awards of the Mixed Claims Commission were not registered in books kept by the debtor (Germany); and the Tax Court was certainly correct in rejecting any argument that the United States government, specifically the Treasury Department, was an agent of Germany for this purpose. Indeed, it is far more reasonable to consider the Treasury Department a collection and disbursing agent for the awardholders. Even if this were not so, there is no inscription on the awards which indicates non-transferability, and the petitioner does not suggest that the awards are not in fact freely transferable. The Treasury Department regulation requiring proof of ownership is merely an administrative measure intended to assure that payments are made only to bona fide holders of awards or owners of interests therein. It does not purport to affect transferability of title and. petitioner does not argue that the regulations actually affect it. Such bookkeeping practices do not satisfy the “registered form” requirement of the statute. Accord, Gerard v. Helvering, supra; Lamm v. Commissioner, 192 F.2d 1017 (9th Cir., 1951) (per curiam), affirming 15 T.C. 305 (1950). Petitioner would have us overlook the manifest inapplicability of Section 1232 to a Mixed Claims Commission award, by contending that the bonds issued by Germany to the United States government in 1953 fall within its terms. Since the bonds were not in registered form, i. e., they bear no inscription of non-transferability etc., and admittedly they have no attached interest coupons, we believe this contention is without substance. In addition, the payments made by the Treasury Department were not in retirement of those bonds, but in reduction of the amounts remaining due on the Lucy Manufacturing Co. award. And the bonds were payable to the United States of America and not to the petitioner; they evidence no right to ownership by awardholders. In determining whether such awardholders may claim the benefits of this limited tax provision, we are inclined to consider it immaterial that funds contemplated by the bonds" }, { "docid": "20744123", "title": "", "text": "part: (a) General Rule. — Por purposes of this subtitle, in the case of bonds, debentures, notes, or certificates or other evidences of indebtedness, which are capital assets in the hands of the taxpayer, and which are issued by any corporation, or government or political subdivision thereof— (1) Retirement. — Amounts received by the holder on retirement of such bonds or other evidences of indebtedness shall be considered as amounts received in exchange therefor (except that in the case of bonds or other evidences of Indebtedness issued before January 1, 1955, this paragraph shall apply only to those issued with interest coupons or in registered form, or to those in such form on March 1, 1954). It should be pointed out that although In those cases there were no sales or exchanges, the bonds or notes were Issued with coupons attached or in registered form and met the requirements of section 117(f), I.R.C. 1939, predecessor of section 1232, I.R.C. 1954. It may be stated that In any event the requirement of the Bureau of Accounts would not app.ear to constitute “registration” within-the meaning of the statute. The term “in registered form” as used in the statute has reference to those evidences of indebtedness title to which cannot be transferred without registration. See Gerard v. Belvering, (C.A. 2) 120 F. 2d 235, affirming 40 B.T.A. 64; Victor A. Miller, 32 T.C. 954, reversed on other issues (C.A. 10) 285 F. 2d 843; and Toye v. United States, (E.D. La.) 157 F. Supp. 123. The requirement of the Bureau of Accounts, pursuant to the provisions of the Settlement of War Claims Act of 1928 as amended, presupposes a transfer of title, and the requirement Is that proof of the transfer be furnished prior to payment. Wilkens testified that the payments made to the petitioner in 1954 andi 1955 were made out of installments No. 2 and 3 paid by the German Government on April 1, 1854, and April 1, 1955, respectively, and it may be that these installments were the source, in whole or in part, of the funds used by the" } ]

[ { "docid": "22687113", "title": "", "text": "v. Jones, 119 U. S. 477; Pocono Pines Assembly Hotels Co. v. United States, 73 Ct. Cls. 447; 76 Ct. Cls. 334; Ex parte Pocono Pines Assembly Hotels Co., 285 U. S. 526. Mb. Justice Douglas, concurring: I join in the Court’s opinion and agree that petitioner’s want of attachment in 1927 to the principles of the Constitution has not been shown by “clear, unequivocal and convincing” evidence. The United States, when it seeks to deprive a person of his American citizenship, carries a heavy burden of showing that he procured it unlawfully. That burden has not been sustained on the present record, as the opinion of the Court makes plain, unless the most extreme views within petitioner’s party are to be imputed or attributed to him and unless all doubts which may exist concerning his beliefs in 1927 are to be resolved against him rather than in his favor. But there is another view of the problem raised by this type of case which is so basic as to merit separate statement. Sec. 15 of the Naturalization Act gives the United States the power and duty to institute actions to set aside and cancel certificates of citizenship on the ground of “fraud” or on the ground that they were “illegally procured.” Sec. 15 “makes nothing fraudulent or unlawful that was honest and lawful when it was done. It imposes no new penalty upon the wrongdoer. But if, after fair hearing, ic is judicially determined that by wrongful conduct he has obtained a title to citizenship, the act provides that he shall be deprived of a privilege that was never rightfully his.” Johannessen v. United States, 225 U. S. 227, 242-243. And see Luria v. United States, 231 U. S. 9, 24. “Wrongful conduct” — like the statutory words “fraud” or “illegally procured” — are strong words. Fraud con notes perjury, concealment, falsification, misrepresentation or the like. But a certificate is illegally, as distinguished from fraudulently, procured when it is obtained without compliance with a “condition precedent to the authority of the Court to grant a petition for naturalization.” Maney" } ]

[ { "docid": "8443257", "title": "", "text": "me while I examined the file, before I started the interview. Before I said anything to him I examined the file completely. “Q. You read over the entire file before you began to interrogate him? A. I examined the file. I didn’t read every word of the file.” Deposition of Reich, December 17, 1953, pp. 21-22 (emphasis supplied). . “Q. Now you made a recommendation of ‘Grant’ in his case, didn’t you? A. That is correct. “Q. Will you tell us, please, what it was that motivated your recommendation of ‘Grant’? A. I felt there was no legal evidence in the file which would sustain an objection. “Q. That these arrests which had been disclosed in 1934, or uncovered in 1934, that they had been outside the statutory period? A. Tes sir, they were 10 years prior to the time of the defendant’s petition for naturalization. “Q. Did the recommendation of the commanding officer concerning approval of this man’s application for citizenship in any way affect your thinking? A. Very definitely. It showed that he had been serving honorably in the armed forces of the United States, and from other parts of the file, he had been serving for almost a year at that time.” N.T. pp. 154-155. . Knauer v. United States, 1946, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500. . Schneiderman v. United States, 1943, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796; Klapprott v. United States, 1949, 335 U.S. 601, 612, 69 S.Ct. 384, 93 L.Ed. 266. . Baumgartner v. United States, 1944, 322 U.S. 665, 670, 64 S.Ct. 1240, 1243, 88 L.Ed. 1525. . Schneiderman v. United States, supra, note 11. . 23 Arn.Jur. on Fraud and Deceit, Sec. 20; Equitable Life Ins. Co. of Iowa v. Halsey, Stuart & Co., 7 Cir., 1940, 112 F.2d 302, 308. . The record in the denaturalization proceedings disclosed that the government had ascertained in its investigation of the defendant’s application for registry in 1931 that he had made an “illegal entry” into the United States; that he had been listed “as deserting” by" }, { "docid": "19997513", "title": "", "text": "during World War II. Acting in that capacity, he did commit acts of unjustified violence which were criminal and must properly be described as war crimes or war atrocities. This information was knowingly concealed by Frank Walus throughout the process of naturalization which resulted in the issuance of his Certificate of Naturalization. Walus’ United States citizenship was therefore illegally procured both because Walus obtained his naturalization by concealment of material facts or by willful misrepresentation and because Walus lacked the good moral character required for United States citizenship. These conclusions have been established by evidence which is clear, convincing, unequivocal and does not leave the issue in doubt. Costello v. United States, 365 U.S. at 269, 81 S.Ct. 534; Chaunt v. United States, 364 U.S. at 353, 81 S.Ct. 147; Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943); Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944), and the various other lower court cases previously cited. In reaching this decision, the court rejects the arguments raised by Walus as affirmative defenses in his answer. First, because a certificate of citizenship illegally obtained is void ab initio, contrary to the argument of the defendant, there is no statute of limitations applicable to denaturalization proceedings. 8 U.S.C. § 1451. On its face, the assertion that because the underlying events occurred some thirty-seven years ago, Fifth and Sixth Amendment principles preclude the Government from now bringing this action similarly lacks merit. With the passage of time, the Government’s task may have escalated; however, no constitutional guarantee has been implicated thereby. Finally, even if by such arguments the defendant is attempting to present the defense of laches, that defense is without merit. The defendant’s Certificate of Naturalization was issued only some six years prior to the time this action was filed, and there has been nothing to indicate a lack of diligence by the United States. Therefore, the defense of laches is not available in this denaturalization proceeding. Costello v. United States, 365 U.S. at 281-284, 81 S.Ct. 534; United States v. Oddo," }, { "docid": "8443258", "title": "", "text": "had been serving honorably in the armed forces of the United States, and from other parts of the file, he had been serving for almost a year at that time.” N.T. pp. 154-155. . Knauer v. United States, 1946, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500. . Schneiderman v. United States, 1943, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796; Klapprott v. United States, 1949, 335 U.S. 601, 612, 69 S.Ct. 384, 93 L.Ed. 266. . Baumgartner v. United States, 1944, 322 U.S. 665, 670, 64 S.Ct. 1240, 1243, 88 L.Ed. 1525. . Schneiderman v. United States, supra, note 11. . 23 Arn.Jur. on Fraud and Deceit, Sec. 20; Equitable Life Ins. Co. of Iowa v. Halsey, Stuart & Co., 7 Cir., 1940, 112 F.2d 302, 308. . The record in the denaturalization proceedings disclosed that the government had ascertained in its investigation of the defendant’s application for registry in 1931 that he had made an “illegal entry” into the United States; that he had been listed “as deserting” by the vessel on which he had been employed as a seaman; that in his application for registry the defendant stated that he had “never been arrested * * * convicted, fined, imprisoned, etc.”; that the defendant had testified at a hearing on his application for registry that he had never been arrested, convicted, etc. . Testimony of Bernard J. Kelley, Supervisor of the Records Unit, Now York District, Immigration and Naturalization Service in 1943, a government witness (N.T. pp. 43-44-45) : “Q. As a matter of practice if form 403 were submitted by a soldier would show that he had entered the United States in a temporary status, such as a seaman, and your further search of your records indicated that there had never been a record created of registry, what would your practice then be? A. Instead of the application being forwarded to the Central Office, as it was in a registry case, it would have been returned to the office of origin with the verification of arrival. “Q. In such a case do" }, { "docid": "13875249", "title": "", "text": "118, 122, 63 S.Ct. 1333, 1335, 87 L.Ed. 1796. “ * * * denaturalization, like deportation, may result in the loss ‘of all that makes life worth living.’ ” Knauer v. United States, 328 U.S. 654, 659, 66 S.Ct. 1304, 1307, 90 L.Ed. 1500. These truths led the Court to lay down the rule that “the facts and the law should be construed as far as is reasonably possible in favor of the citizen” and require that the grounds for revocation of citizenship must be based upon “ ‘clear, unequivocal, and convincing’ evidence which does not leave the issue in doubt.” Schneiderman v. United States, 320 U.S. 118, 122, 135, 63 S.Ct. 1333, 1335, 1341, 87 L.Ed. 1796. See, also, Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525. The defendant was born in Italy in 1897 and has continually resided in the United States since 1913 and has been a citizen since 1929. He has been married to a native American citizen since 1924 and all four of his children were born in this country. His older son served honorably in the United States Armed Forces during World War II. His younger son recently sacrificed his life in the military service of his country while performing an act of heroism, leaving a widow and three children now cared for by the defendant. In relating this family background and the implications of hardship in the event the petition for denaturalization is granted, I am not unmindful of the mandate upon me to revoke defendant’s citizenship if the Government dem onstrates by appropriate proof that he_ obtained his naturalization fraudulently or illegally, as alleged. Corrado v. United States, 6 Cir., 227 F.2d 780; United States v. Montalbano (United States v. Genovese), 3 Cir., 236 F.2d 757. Thus the crucial question is whether the Government has proved, by clear, unequivocal and convincing evidence, the alleged fraud or illegality. These are the facts: On September 19, 1922, the defendant, who was then a resident of Detroit, Michigan, filed a petition for naturalization in the Circuit Court of Wayne County," }, { "docid": "21338063", "title": "", "text": "MARSHALL, Circuit Judge. This is an appeal by John Oddo from a decree of the United States District. Court for the Eastern District of New York, Bruchhausen, J., which revoked and set aside the order admitting him to citizenship entered by that court on December 1, 1931. The decision is reported at 202 F.Supp. 899 (E.D.N.Y.1962). The Government brought this proceeding on June 21, 1957, pursuant to § 340 (a) of the Immigration and Nationality Act of 1952, which authorizes denaturalization when it appears that the certificate of naturalization was “procured by concealment of a material fact or by willful misrepresentation.” 8 U.S.C. § 1451(a). It was the Government’s contention that during the course of his naturalization proceedings Oddo concealed a material fact in swearing under oath that he had never been arrested or charged with the violation of any law when, in fact, he knew that he had been arrested a number of times prior to the date of his naturalization. The District Court sustained this contention, holding that the Government had “clearly established that this defendant deliberately concealed his criminal record and thereby committed a fraud upon the Government which supports the revocation of citizenship” 202 F.Supp. at 900. We are asked to review that decision. The right to acquire American citizenship is a precious one. Once acquired, the loss of citizenship can have severe and unsettling consequences. For this reason, the Government properly “carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship.” Costello v. United States, 365 U.S. 265, 269, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). The evidence justifying divestment must be “clear, unequivocal, and convincing” and not leave “the issue * * * in doubt.” Schneiderman v. United States, 320 U.S. 118, 125, 158, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943). See Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L. Ed.2d 120 (1960); Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944). A standard less exacting would be inconsistent with the importance of the right at stake. We" }, { "docid": "21541940", "title": "", "text": "Supreme Court had made it clear that fraud as a statutory ground for denaturalization need not be extrinsic, as contended by counsel for the defendant. Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500. It was declared that the evidence introduced met the test required by Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, inasmuch as it supported clear findings and constituted unequivocal proof that the defendant had been, during a portion of the ten-year period preceding his naturalization, a member of an organization which advised, taught and advocated the overthrow of the Government of the United States by force and violence. The Court was not concerned, as in the Schneiderman case and in Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525, with the state of mind of the defendant at the time of naturalization, “a condition necessarily difficult to ascertain and prove, but with an objective fact which may be established with that degree of proof necessary to convince reasonable minds.” [106 F.Supp. 635] This court is of opinion that Judge Levin’s decision rested upon sound grounds and should be upheld. In No. 11,841, the Nicholai Chomiak case, Judge Thornton found the evidence convincing that the defendant had been a member of the Communist Party of the United States from 1933 to 1938 and that, during such period, the Communist Party was an organization which be lieved in, advised, advocated and taught the overthrow by force and violence of the Government of the United States. Wherefore, the United States District Judge held the defendant to be a person who was prohibited by statute from becoming a naturalized citizen and one whose naturalization had not been issued in accordance with statutory requirements. He cited United States v. Ginsberg, 243 U.S. 472, 475, 37 S.Ct. 422, 61 L.Ed. 853, to the effect that if naturalization be procured when prescribed qualifications have no existence in fact, it is illegally procured; and held that Chomiak had procured his naturalization illegally and that accordingly his certificate of citizenship should be" }, { "docid": "18415361", "title": "", "text": "the Third Circuit, requiring the Government to disprove its prior determination by \"clear, unequivocal, and convincing\" evidence, equates with the rule which obtains in denaturalization cases. See Schneiderman v. United States, 320 U.S. 118, 123, 125, 63 S.Ct. 1333, 87 L.Ed. 1796; Baumgartner v. United States, 322 U.S. 665, 670, 64 S.Ct. 1240, 88 L.Ed. 1525. A certificate of citizenship issued in a naturalization proceeding is based upon a judicial decree. In this respect, denaturalization cases differ from the kind of case which is now before us. Instead of seeking to set aside a judicial decree, the Government here seeks to set at naught a decision by a board of special inquiry. A proceeding before a board of special inquiry is not a judicial proceeding, and a decision rendered by such a board does not have the standing of a judgment. In other respects, however, a denatur-alization proceeding of the kind involved in the Schneiclerman and Baumgartner cases seems to be closely akin to the effort which the Government here made to overcome the plaintiff's prima facie case consisting of a favorable board decision. In the Schneiderman and Baumgartner cases, the position of the Government in essence was that the persons in question had never occupied an unchallengeable citizenship status. This is likewise the Government's position in the case now before us. In the Schneiderman and Baumgartner cases, the pertinent statute authorized the setting aside of a certificate of citizenship on the ground of fraud or by showing that it was \"illegally procured.\" Section 15 of the act of June 29, 1908, 34 Stat. 596. In Schneiderman, it was assumed (320 U.S. at page 124, 63 S.Ct. at page 1336) that a certificate is \"illegally procured\" within the meaning of the statute if it is later determined that an essential finding of fact in the naturalization proceeding was erroneous. In cases of the kind now before us, a decision of a board of special inquiry admitting a person as a citizen of the United States may be rebutted by showing that the decision was obtained by fraud or \"error.\" While" }, { "docid": "16552096", "title": "", "text": "in which such person last had his residence. The two major theories advanced by the Government are: (1) Osidach illegally procured his citizenship; and/or, (2) Osidach willfully misrepresented and/or concealed certain material facts from the immigration authorities at the time he procured his grant of citizenship. The Government contends that it should prevail under either or both theories. It must be kept in mind that, despite the content of the allegations and counter-allegations, this case is not a criminal case but a civil case; accordingly, these theories are necessarily dependent upon common elements of fact which must be proven by the Government by what the United States Supreme Court has recently described as “clear, unequivocal and convincing evidence” which “does not leave the issue in doubt.” Fedorenko v. United States, - U.S.--, -, 101 S.Ct. 737, 747, 66 L.Ed.2d 686 (1981), quoting Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 1336, 87 L.Ed. 1796 (1943). See also Woodby v. Immigration Service, 385 U.S. 276, 285-286, 87 S.Ct. 483, 487-488, 17 L.Ed.2d 362 (1966). As the Court in Fedorenko stated: On the one hand, our decisions have recognized that the right to acquire American citizenship is a precious one, and that once citizenship has been acquired, its loss can have severe and unsettling consequences. See Costello v. United States, 365 U.S. 265, 269 [81 S.Ct. 534, 536, 5 L.Ed.2d 551] (1961); Chaunt v. United States, supra, [364 U.S. 350] . at 353 [81 S.Ct. 147, 149, 5 L.Ed.2d 120]; Baumgartner v. United States, 322 U.S. 665, 675-676 [64 S.Ct. 1240, 1245-1246, 88 L.Ed. 1525] (1944); Schneiderman v. United States, 320 U.S. 118, 122 [63 S.Ct. 1333, 1335, 87 L.Ed. 1796] (1943). Any less exacting standard would be inconsistent with the importance of the right that is at stake in a denaturalization proceeding. And in reviewing denaturalization cases, we have carefully examined the record ourselves. See, e. g., Costello v. United States, supra; Chaunt v. United States, supra; Nowak v. United States, 356 U.S. 660 [78 S.Ct. 955, 2 L.Ed.2d 1048] (1958); Baumgartner v. United States, supra. -U.S. at" }, { "docid": "693824", "title": "", "text": "good order and happiness of the United States; and had been arrested three times. The amended complaint further asserted that as a result of these concealments and misrepresentations the Immigration and Naturalization Service did not make a further investigation as to whether the defendant for five years immediately preceding his application had behaved as a person of good moral character attached to the principles of the Constitution and well disposed to the good order and happiness of the United States and whether he could take the oath of allegiance without mental reservation or purpose of evasion, all as required by section 4 of the Immigration and Nationality Act of 1906, 34 Stat. 596, 8 U.S.C.A. § 1448(a). The district court found that the evidence supported the claims made by the Government and entered judgment revoking the order admitting defendant to citizenship and cancelling Certificate of Naturalization No. 4785200. This appeal followed. The defendant contends that the findings of the district court must be set aside as erroneous and that, in any event, the issues are res judicata between him and the Government. In reviewing the findings of the district court in denaturalization cases we must scrutinize the record with utmost care to determine whether the Government had carried its burden of proving by “clear, unequivocal, and convincing” evidence, which does not leave “the issue in doubt”, that the citizen who is sought to be returned to the status of an alien obtained his naturalization certificate illegally. Schneiderman v. United States, 1943, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796; Baumgartner v. United States, 1944, 322 U.S. 665, 670, 64 S.Ct. 1240, 88 L.Ed. 1525; Knauer v. United States, 1946, 328 U.S. 654, 657-658, 66 S.Ct. 1304, 90 L.Ed. 1500; Nowak v. United States, 1958, 356 U.S. 660, 663, 78 S.Ct. 955, 2 L.Ed.2d 1048; Maisenberg v. United States, 1958, 356 U.S. 670, 78 S.Ct. 960, 2 L.Ed.2d 1056. We consider first the defendant’s contention that the district court erred in finding that he intentionally concealed the fact of his arrests and willfully misrepresented that he had never" }, { "docid": "5232150", "title": "", "text": "582 U.S. -, 137 S.Ct. 1918, 1920, 198 L.Ed.2d 460 (2017). If proof of the requisite mens rea is lacking or some other factor counsels against criminal prosecution, the government alternatively may denaturalize a person by obtaining a civil denaturalization order in federal court pursuant to 8 U.S.C. § 1451. “The exclusive [noncriminal] process for challenging the validity of the grant of a naturalization petition is through a revocation of naturalization proceeding pursuant to 8 U.S.C. § 1451.” United States v. Clarke, 628 F.Supp.2d 15, 23 (D.D.C. 2009), aff'd sub nom. United States v. Straker, 800 F.3d 570. Whenever any person procures a naturalization order or certificate illegally, or by concealment of a material fact or willful misrepresentation, section 1451 authorizes the government to sue “for the purpose of revoking and setting aside the order admitting such person to citizenship and cancelling the certificate of naturalization.” 8 U.S.C. § 1451(a); see Zucca, 351 U.S. at 91, 76 S.Ct. 671; Bindczyck, 342 U.S. at 83, 72 S.Ct. 130. In that proceeding, the govern ment “carries a heavy burden of proof.” Costello v. United States, 365 U.S. 265, 269, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). “[I]n view of the grave consequences to the citizen, naturalization decrees are not lightly to be set aside—the evidence must indeed be ‘clear, unequivocal, and convincing’ and not leave ‘the issue in doubt.’ ” Id. (quoting Schneiderman, 320 U.S. at 125, 158, 63 S.Ct. 1333; Baumgartner v. United States, 322 U.S. 665, 670, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944)) (alteration omitted); see Nowak v. United States, 356 U.S. 660, 663, 78 S.Ct. 963, 2 L.Ed.2d 1048 (1958). Here, however, the government has not gone to court to seek denaturalization of any of the plaintiffs in this case; it has administratively canceled their certificates of naturalization and revoked their passports. The Attorney General has statutory authority, without a court order, to “cancel any certificate of citizenship” where it appears “to the Attorney General’s satisfaction” that the document was illegally or fraudulently obtained. 8 U.S.C. § 1453. The Department of Homeland Security has promulgated regulations governing that" }, { "docid": "16998458", "title": "", "text": "the court. Schneiderman v. United States, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796; Klapprott v. United States, 335 U.S. 601, 612, 69 S.Ct. 384,. 93 L.Ed. 266; Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500; United States v. Anastasio, 3 Cir., 226 F.2d 912. As the Supreme Court said in Baumgartner v. United States, 322 U.S. 665, 670, 64 S.Ct. 1240, 1243, 88 L.Ed. 1525, there must be “ * * *' solidity of proof which leaves no troubling doubt in deciding a question ofr such gravity as is implied in an attempt to reduce a person to the status of alien from that of citizen.” In such a proceeding “ * * * the facts and the law should be construed as far as is reasonably possible in favor of the citizen.” Schneiderman v. United States, supra. See, also, United States v. Minker, 350 U.S. 179, 193, 76 S.Ct. 281, 100 L.Ed. 185; Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806. On the papers now before me the Government has not sustained this burden, and, indeed, it would be most difficult for it to do so on a motion for summary judgment. Intent to deceive on the part of the defendant is an essential element of the Government’s proof. United States v. Tuteur, 7 Cir., 215 F.2d 415; Knauer v. United States, supra. There are plainly triable issues of fact .as to this as well as other matters. The motion for summary judgment must be denied. See Arnstein v. Porter, 2 Cir., 154 F.2d 464; Colby v. Klune, 2 Cir., 178 F.2d 872." }, { "docid": "7392379", "title": "", "text": "remained in Mexico with the intention of evading the draft laws of the United States. Such conduct is a ground for expatriation under Section 401 (j) of the Nationality Act. In a suit to establish his United States citizenship, he denied having remained in Mexico to evade the draft, and denied having made any admissions to that effect. The District Court rejected his testimony and denied relief, relying on the prior statements under oath, as contained in the transcript of the immigration proceedings. The Ninth Circuit affirmed. 9 Cir., 1954, 215 F.2d 955. The Supreme Court, however, reversed per curiam, holding that “the standard of proof required in denaturalization cases, see Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796; Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525, is applicable to expatriation cases arising under § 401(j) of the Nationality Act of 1940, 54 Stat. 1137, as amended, and has not been satisfied in this case.” 350 U.S. at page 920, 76 S.Ct. at page 210. That decision is controlling here. In cases of the present sort, it is clear there must be “solidity of proof which leaves no troubling doubt in deciding a question of such gravity as is implied in an attempt to reduce a person to the status of alien from that of citizen.” Baumgartner v. United States, supra, 322 U.S. at page 670, 64 S.Ct. at page 3243. The burden is on the Government to prove an act of expatriation, Mitsugi Nishikawa v. Dulles, 1958, 356 U.S. 129, 133, 78 S.Ct. 612, 2 L.Ed.2d 659, and it must do so by evidence which is “clear, unequivocal, and convincing,” and which does not leave the issue in doubt. Schneiderman v. United States, supra, 320 U.S. at page 125, 63 S.Ct. 1333, 1336. Here, the District Judge was not impressed by appellant’s testimony at the trial of his case, and concluded that his earlier statements to the Immigration Service represented the truth. Ordinarily, the opportunity of the trial court to observe the demeanor of the witness will be given" }, { "docid": "15313257", "title": "", "text": "STALEY, Circuit Judge. This opinion covers two separate appeals which arose from denaturalization proceedings. ' In No. 11,785,' appellant Carmelo Montalbano challenges the order of the District Court for the Eastern District of Pennsylvania revoking his citizenship and cancelling his certificate of naturalization. In No. 11,790, Vito Genovese appeals from a similar order entered as to him by the District Court of New Jersey. The sole question raised by Montalbano, and one of the questions raised by Genovese, is whether plaintiff, United States of America, sustained its burden of establishing that the respective defendants procured United States citizenship fraudulently and illegally. All parties agree that the government’s burden is a heavy one and this court should affirm only if the records contain clear, unequivocal, and convincing evidence which does not leave the issues of fraud or illegality in doubt. Schneiderman v. United States, 1943, 320 U.S. 118, 158, 63 S.Ct. 1333, 87 L.Ed. 1796; Baumgartner v. United States, 1944, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; United States v. Anastasio, 3 Cir., 1955, 226 F.2d 912, certiorari denied, 1956, 351 U.S. 931, 76 S.Ct. 787. In both cases, the government’s charges rested on the alleged fact that in applying for citizenship each defendant had lied when asked whether he had ever been arrested or charged with violation of any law of the United States or State or any city ordinance or traffic regulation. There is no dispute that both Montalbano and Genovese had criminal records. The record in the Montalbano case shows that on February 15, 1933, Mon-talbano filed with the Immigration and Naturalization Service his “Application for Certificate of Arrival and Preliminary Form for Petition for Citizenship” which admittedly was not prepared by anyone in the Immigration Service, but was sent in by Montalbano or by someone on his behalf and was signed by Mon-talbano. Question 29 on that form, which read “Have you ever been arrest ed or charged with violation of any law of the United States or State or any city ordinance or traffic regulation?” was answered in the negative. On March 15, 1933," }, { "docid": "18027685", "title": "", "text": "Stipulation 40; Ex. 137. 112. During the naturalization application process applicable when Kazys Ciurinskas applied for naturalization in 1954-1955, the applicant swore that the information in the Petition (Form N-405) was correct. Stipulation 41. 113. Kazys Ciurinskas became a naturalized citizen of the United States on February 17, 1955 and was issued Certificate of Naturalization No. 7262096. Stipulation 42. 114. Kazys Ciurinskas has remained a citizen of the United States since February 17,1955. Stipulation 43. CONCLUSIONS OF LAW 115. The subject-matter of this action is within the court’s jurisdiction over this matter. 28 U.S.C. § 1345; 8 U.S.C. § 1451(a). 116. The right to acquire United States citizenship is precious, and evidence justifying revocation of citizenship must be clear, unequivocal and convincing. Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 746-47, 66 L.Ed.2d 686 (1981). United States v. Kairys, 782 F.2d 1374, 1378 (7th Cir.1986). “[Bjecause of the grave consequences incident to denaturalization proceedings ... a burden rests on the Gov ernment to prove its charges by clear, unequivocal and convincing evidence which does not leave the issue in doubt.” Klapprott v. United States, 335 U.S. 601, 612, 69 S.Ct. 384, 389, 93 L.Ed. 266, 276 (1949); see also Kungys v. United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 1547, 99 L.Ed.2d 839 (1988); Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 1336-37, 87 L.Ed. 1796 (1943). 117. No person may be naturalized as a United States citizen who was not lawfully admitted for permanent residence. 8 U.S.C. § 1427(a). 118. An order admitting a person to United States citizenship may be revoked and set aside, and that person’s certifícate of naturalization canceled, on the grounds that such order and certificate were illegally procured. 8 U.S.C. § 1451(a). 119. Because of the importance of the interests at stake, “there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship ‘illegally procured’ and naturalization that is unlawfully procured can be set aside.” Fedorenko, 449 U.S. at" }, { "docid": "693825", "title": "", "text": "res judicata between him and the Government. In reviewing the findings of the district court in denaturalization cases we must scrutinize the record with utmost care to determine whether the Government had carried its burden of proving by “clear, unequivocal, and convincing” evidence, which does not leave “the issue in doubt”, that the citizen who is sought to be returned to the status of an alien obtained his naturalization certificate illegally. Schneiderman v. United States, 1943, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796; Baumgartner v. United States, 1944, 322 U.S. 665, 670, 64 S.Ct. 1240, 88 L.Ed. 1525; Knauer v. United States, 1946, 328 U.S. 654, 657-658, 66 S.Ct. 1304, 90 L.Ed. 1500; Nowak v. United States, 1958, 356 U.S. 660, 663, 78 S.Ct. 955, 2 L.Ed.2d 1048; Maisenberg v. United States, 1958, 356 U.S. 670, 78 S.Ct. 960, 2 L.Ed.2d 1056. We consider first the defendant’s contention that the district court erred in finding that he intentionally concealed the fact of his arrests and willfully misrepresented that he had never been arrested. In his preliminary form for petition for naturalization the defendant answered “No” to Question 30: “Have you ever been arrested or charged with violation of any law of the United States or State or any city ordinance or traffic regulation?” The defendant does not contend that this question is ambiguous. The Government called as a witness Calvin Derrenger, the naturalization examiner who conducted the preliminary examination of the defendant, who testified, inter alia, that it was his custom and practice, as well as duty under the regulations of the Immigration and Naturalization Service, to cover thoroughly the question of arrests. He identified various marks which appeared on the defendant’s preliminary form for petition for naturalization. In respect to the initials “RE” he testified: “They mean that the petitioner could read English. I tested him on that and found he could read English.” As to the initials “NCR” he stated: “They mean that I asked the petitioner if he had any record of arrests anywhere and his answer was that he had none, and" }, { "docid": "13958627", "title": "", "text": "1427(e) provides that the court may take into consideration as a basis for its determination the petitioner’s conduct and acts at any time prior to that period. . For a detailed outline of the history of the immigration laws see the Legislative History of the Immigration and Naturalization Act of 1952; reported at [1952] U.S.Code Cong. & Admin.News, pp. 1653-1674; pp. 1674-1682. . See Gordon & Rosenfeld, Immigration Law & Procedure § 20.1, 20-10 thru 20-11 (1975). . See, e. g., U. S. v. Ginsberg, 243 U.S. 472, 37 S.Ct. 422, 61 L.Ed. 853 (1917); U. S. v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321 (1917); Johannessen v. U. S., 225 U.S. 227, 32 S.Ct. 613, 56 L.Ed. 1066 (1912). . See, e. g., Schneiderman v. U. S., 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), Baumgartner v. U. S., 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944), Knauer v. U. S., 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500 (1946), Maisenberg v. U. S., 356 U.S. 670, 78 S.Ct. 960, 2 L.Ed.2d 1056 (1958), Nowak v. U. S., 356 U.S. 660, 78 S.Ct. 955, 2 L.Ed.2d 1048 (1958). . See Baumgartner v. U. S., 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944). . See Shaughnessy v. U. S. ex rel. Accardi, 349 U.S. 280, 75 S.Ct. 746, 99 L.Ed. 1074 (1955). Among the cases which appear to be part of the Government’s effort are U. S. v. Montalbano, 236 F.2d 757 (3rd Cir. 1956) affirmed sub nom. Genovese v. U. S., 352 U.S. 952, 77 S.Ct. 327, 1 L.Ed.2d 244 (1956); U. S. v. Anastasio, 226 F.2d 912 (3rd Cir. 1955); Conrado v. U. S., 227 F.2d 780 (6th Cir. 1955); U. S. v. Oddo, 314 F.2d 115 (2d Cir. 1963). . Gutierrez-Sosa v. Del Guercio, 247 F.2d 266 (9th Cir. 1957); Petition for Naturalization of O- N-, 233 F.Supp. 504 (S.D.N.Y.1964); In re C-C_J_P__ 299 F.Supp. 767 (N.D.Ill.1969). . The court agrees with the assertion of defendant’s counsel that Mr. Fedorenko wants to please and on cross-examination would" }, { "docid": "13875248", "title": "", "text": "LEVIN, District Judge. This is an action to revoke the citizenship of Angelo Meli, under Section 338 (a) of the Nationality Act of 1940, 54 Stat. 1158, Section 738(a) U.S.C. Title 8 . Meli, a native of Italy, was naturalized in the United States District Court, for the Eastern District of New York on July 30, 1929. The complaint contains numerous allegations that the defendant’s citizenship was fraudulently and illegally obtained, but the Government in its brief has abandoned all but the following grounds for revocation: (1) That the defendant fraudulently obtained citizenship by concealing the fact that he had previously filed two prior petitions for naturalization. (2) That the defendant fraudulently obtained citizenship by concealing his criminal record. (3) That since the defendant fraudulently concealed the filing of prior petitions and his criminal record, he was not a person of good moral character eligible for citizenship. “Nowhere in the world today is the right of citizenship of greater worth to an individual than it is in this country.” Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 1335, 87 L.Ed. 1796. “ * * * denaturalization, like deportation, may result in the loss ‘of all that makes life worth living.’ ” Knauer v. United States, 328 U.S. 654, 659, 66 S.Ct. 1304, 1307, 90 L.Ed. 1500. These truths led the Court to lay down the rule that “the facts and the law should be construed as far as is reasonably possible in favor of the citizen” and require that the grounds for revocation of citizenship must be based upon “ ‘clear, unequivocal, and convincing’ evidence which does not leave the issue in doubt.” Schneiderman v. United States, 320 U.S. 118, 122, 135, 63 S.Ct. 1333, 1335, 1341, 87 L.Ed. 1796. See, also, Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525. The defendant was born in Italy in 1897 and has continually resided in the United States since 1913 and has been a citizen since 1929. He has been married to a native American citizen since 1924 and all four of his children" }, { "docid": "21450623", "title": "", "text": "judgments has been broadened with respect to judgments of naturalization, and the Court of Appeals for this circuit has held, citing Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525, that “the statutory authorization to revoke a judgment of naturalization procured by fraud is valid, whether the fraud be intrinsic or extrinsic.” United States v. Siegel, 2 Cir., 152 F.2d 614, 615; United States v. Hauck, 2 Cir., 155 F.2d 141. A further ground advanced for dismissal is that the complaint seeks to denaturalize a citizen for alleged conduct and beliefs not proscribed at the time of naturalization. Defendant contends that the annulment of the judgment of naturalization is sought “essentially” on the ground that he allegedly was, at the time of naturalization, a member of the Communist Party and of other Communist organizations, which membership was not, under the law then prevailing, grounds for the denial of citizenship. Consequently, it is urged, if there may now be a denaturalization because of such membership, the statute will be read as making fraudulent and illegal that which was honest and legal when done, an unconstitutional retroactive application of the law. But the defendant’s apprehension is premature. The plaintiff has alleged and must prove, not merely Communist organization memberships, but fraud or illegal procurement of the judgment of naturalization, and it must effect proof by clear, unequivocal and convincing evidence. Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed 1796. I do not conceive that the plaintiff may meet this burden merely by proving conduct which was honest and legal when performed. If, after a trial, a judgment of denaturalization is rendered against the defendant, he will then be in a position to question the nature of the proof adduced against him. At this state of the proceedings, certainly, the issue of an unconstitutional retroactive, application of the statute is not properly raised. I do not deem it necessary to re-examine the constitutionality of the Naturalization Act of 1906 or of § 738(a) of Title 8. And the complaint does contain allegations which, if proved," }, { "docid": "19997461", "title": "", "text": "Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960); United States v. DeLucia, 256 F.2d 487 (7th Cir. 1958); Stevens v. United States, 190 F.2d 880 (7th Cir. 1951). Nor can it be doubted that if the Government has established its allegations against Walus, it is entitled to the relief it seeks. Failure to disclose the commission of crimes or offenses during naturalization proceedings can constitute a sufficient concealment of a material fact to justify denaturalization. Costello v. United States, supra; United States v. DeLucia, supra; United States v. Montalbano, 236 F.2d 757 (3rd Cir. 1956); Corrado v. United States, 227 F.2d 780 (6th Cir. 1955); United States v. Accardo, 208 F.2d 632 (3rd Cir. 1953); cert. denied, 347 U.S. 952, 74 S.Ct. 677, 98 L.Ed. 1098 (1954). See also, United States v. Genovese, 236 F.2d 757 (3rd Cir. 1956), cert. denied, 352 U.S. 952, 77 S.Ct. 327, 1 L.Ed.2d 244 (1956); United States v. Oddo, 314 F.2d 115 (2nd Cir. 1963); Stacher v. United States, 258 F.2d 112 (9th Cir. 1958). Thus, by sustaining its burden as to the facts alleged in its complaint, the Government demonstrates that it is entitled to have the court enter an appropriate order granting the relief sought in its complaint. The court appreciates that if the relief sought by the Government is ordered, the defendant will be divested of one of his most fundamental rights, that of American citizenship. For this reason, naturalization decrees are not to be revoked without the utmost consideration. To sustain its burden of proof in a denaturalization proceeding, the United States must therefore establish its allegations by evidence that is clear, convincing, unequivocal, and such as does not leave the issue in doubt. See Costello v. United States, 365 U.S. at 269, 81 S.Ct. 534, and Chaunt v. United States, 364 U.S. at 353, 81 S.Ct. 147, both citing Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943) and Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944); see also United States v." }, { "docid": "16998457", "title": "", "text": "FREDERICK van PELT BRYAN,. District Judge. The Government moves for summary-judgment, pursuant to Rule 56, Fed.Rules Civ.Proc., 28 U.S.C.A. in this proceeding for revocation of citizenship of a naturalized citizen under Section 338(a) of the Nationality Act of 1940, and under Section 340 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1451(a). Apparently the Government has withdrawn the portion of its petition, laid under Section 338(a) of the Nationality Act of 1940. It asserts, however, that defendant’s naturalization was obtained by fraud through his wilful and intentional misrepresentation of material facts concerning alleged illegal entries, into the United States from Canada, and! with respect to his alleged criminal record, and that the defendant’s citizenship should be revoked under Section 340. of the 1952 Act. The Government bears a heavy burden in a denaturalization proceeding. It must establish by “ ‘clear, unequivocal, and convincing’ evidence which does not leave ‘the issue in doubt’ ” that the defendant has been guilty of fraud or illegal conduct in obtaining naturalization which deceived the Government or the court. Schneiderman v. United States, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796; Klapprott v. United States, 335 U.S. 601, 612, 69 S.Ct. 384,. 93 L.Ed. 266; Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500; United States v. Anastasio, 3 Cir., 226 F.2d 912. As the Supreme Court said in Baumgartner v. United States, 322 U.S. 665, 670, 64 S.Ct. 1240, 1243, 88 L.Ed. 1525, there must be “ * * *' solidity of proof which leaves no troubling doubt in deciding a question ofr such gravity as is implied in an attempt to reduce a person to the status of alien from that of citizen.” In such a proceeding “ * * * the facts and the law should be construed as far as is reasonably possible in favor of the citizen.” Schneiderman v. United States, supra. See, also, United States v. Minker, 350 U.S. 179, 193, 76 S.Ct. 281, 100 L.Ed. 185; Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806." } ]

[ { "docid": "19271452", "title": "", "text": "issues have been raised and ruled on in various portions of this Recommendation. The Special Master has affirmed in part Central National’s motion for summary judgment and denied in part Centra! National’s motion for summary judgment. 11. American Centennial. Pending is the separate motion of American Centennial Insurance Company (“ACIC”) seeking entry of summary judgment against CCC, CCCI, Hjersted, IBM, Armeo, FMC, AT & T-TI, American Oil Company, General Dynamics Corporation, Kustom Electronics, United States Industries, Parmelee Pharmaceutical Company, Ford Motor Company, Trane Company, the Atchison, Topeka & Santa Fe Railroad, Air-tex Products, Inc., Sperry Corporation, Maryland Casualty Company, Murray Manufacturing Company of Ohio, as well as “any other third-party generator which has not waived its ‘deemed filed’ cross-claim against third-party defendant insurance companies.” In support of its motion, ACIC raises ten separate arguments. With the possible exception of the argument set forth at Section VIIIB alleging a violation of the doctrine of ubberimae fidei, all other arguments advanced by ACIC have been dealt with in this Report and Recommendation. The Special Master therefore adopts the recommendations regarding each of the points raised in ACIC’s brief, including those concerning application of Missouri law, cleanup costs constituting property damages, the nature of the relief sought by the United States, the fact of an occurrence, the application of the pollution exclusion, misrepresentation and concealment, third-party beneficiary, untimely notice, and failure to state a claim for bad faith. In accordance with the recommendations on each of these subjects, the Special Master approves in part and denies in part ACIC’s separate motion for summary judgment. Furthermore, the Special Master recommends denial of ACIC’s motion for summary judgment as such applies to American Oil Company, General Dynamics Corporation, Kustom Electronics, United States Industries, Parmelee Pharmaceutical Company, Ford Motor Company, Trane Company, the Atchison, Topeka & Santa Fe Railroad, Airtex Products, Inc., Sperry Corporation, Maryland Casualty, Murray Manufacturing of Ohio, as well as all other third-party generators who have not waived their “deemed filed” cross-claims against ACIC. The Special Master believes that the motion regarding such parties is moot in light of the Court’s Orders of" } ]

[ { "docid": "23000886", "title": "", "text": "or transfer for improper venue or for forum nonconveniens and motions to dismiss for lack of diversity shall be filed no later than thirty (30) days after the defendants’ answer is filed. 9. No further discovery may occur until all parties have complied with the above discovery requirements, except by order of the Court upon motion showing extraordinary circumstances. 10. Each defendant is deemed to be asserting a cross-action for indemnity or contribution against all other defendants; therefore, cross-claims should not be filed. In the event that any defendant is dismissed from the main action, all cross-actions deemed by this order to have been asserted by or against said defendant will be automatically dismissed; therefore, motions by such defendants for dismissal of cross-claims should not be filed. These provisions do not apply to third-party complaints that allege the breach of a direct responsibility to the third-party plaintiff; such complaints require formal filing and dismissal. 11. No additional parties may be joined after sixty (60) days from the filing of defendants’ answer. 12. The following standard motions, in all cases in which they are applicable, will be considered for purposes of appeal to have been timely filed and responded to, and are disposed of as indicated. No such motions or responses need be or shall be filed. a. The plaintiff’s MOTION FOR PARTIAL SUMMARY JUDGMENT on grounds of collateral estoppel is DENIED. b. The plaintiff’s MOTION FOR LEAVE TO ASSERT CLAIM FOR PUNITIVE DAMAGES is GRANTED. c. The parties’ MOTIONS TO USE DEPOSITIONS TAKEN IN OTHER CASES is GRANTED, subject to specific objections at time of trial to the admissibility of specific parts. The parties shall designate to each other by page and line the parts of the depositions that they intend to use no later than five (5) days prior to trial. d. All defendants’ MOTIONS FOR SUMMARY JUDGMENT on grounds that the plaintiff was not exposed to their products are DENIED. The plaintiff’s failure to nonsuit any particular defendant at least seven (7) days before trial is a representation to the Court that the plaintiff will present competent evidence" }, { "docid": "9379281", "title": "", "text": "evidence of its own negotiations with Macera was not necessary to the district court’s conclusion. We conclude, therefore, that the district court did not rely improperly on an adverse inference and affirm its finding that UTC did not present sufficient proof that Macera selected the Davis site. ii. Arranger Liability UTC also argues that it proved that Macera was liable as an arranger of waste under CERCLA. Macera claims that UTC’s assertion of an arranger claim is untimely. In the 1991 third-party complaint originally naming Macera as a defendant, UTC alleged only that Macera was hable as a transporter of waste. The district court entered a case management and scheduling order in December 1995 providing that “[a]ll cross-claims and counterclaims are deemed made and denied, except that contractual claims for indemnity must be specifically plead.” The order also specified that amendments to third-party complaints had to be filed before January 2,1996. After the case was transferred to Chief Judge Torres, he entered an order in January 1998 providing: On December 14, 1995, an order was entered providing that ah parties were deemed to have asserted claims, cross-claims and counterclaims against all other parties for contribution and/or indemnity without the need for specifically pleading such claims. Whereas it is impossible to determine what parties, in fact, are asserting such claims, the nature of any such claims or the basis for any such claims ... it is hereby ORDERED that on or before February 15, 1998, each party asserting a claim, cross-claim or counterclaim for contribution and/or indemnity shall, if such party has not already done so, file and serve pleadings setting forth such claim. Such pleadings shall specify the precise nature and basis of each claim asserted. Relying on that order, UTC filed an amended third-party complaint against Macera, alleging for the first time that Macera was also liable as an arranger. In its answer, Macera objected to this amendment as untimely. For reasons that are unclear, the issue of whether UTC timely pled an arranger claim against Macera was not resolved before trial. However, the district court addressed this dispute" }, { "docid": "18864939", "title": "", "text": "as funds on hand were depleted. The orders were silent as to (i) whether or not the court planned to readjust defendants’ contributions in light of future developments, and (ii) the court’s authority, if any, to effectuate-such realloca-tions. Roughly two years after the first shots in the litigation had been fired, a group of defendants involved in the hotel’s ownership and operation settled with the plaintiffs (the fire victims and their families) and cross-claimed for indemnification against various insurers whose liability policies had expired before the fire started (the pre-fire insurers). On August 9, 1989, the plaintiffs followed the cross-claimants’’ lead, adding the pre-fire insurers as direct defendants under P.R. Laws Ann. tit. 26, §§ 2001, 2003 (1976). Because discovery had formally closed on December 15, 1988, see Pretrial Order No. 127, at 96-97, the pre-fire insurers’ investigation of the newly emergent claims against them necessarily centered around a review of documents stored in the JDD. The pre-fire insurers quickly filed disposi-tive motions. The district court, faced with more pressing problems, was slow in addressing the motions. Finally, .the court granted them on September 11, 1992, see In re San Juan Dupont Plaza Hotel Fire Litig., 802 F.Supp. 624 (D.P.R.1992), aff'd, 989 F.2d 36 (1st Cir.1993), entered judgment in favor of the pre-fire insurers on all claims, and decreed that the parties' would bear their own costs. On appeal, seventeen pre-fire insurers complain that the district court abused its discretion by summarily precluding both an award of costs and a complete or partial refund of the cost-sharing assessments. The fire victims, represented by the Plaintiffs’ Steering Committee (PSC), and two cross-claimants, Hotel Systems International (HSI) and Dupont Plaza Associates (Associates), filed opposition briefs and participated in oral argument. II. NATURE OF THE STAKES In the expectation that describing the disputed expenditures in greater detail will help to put matters in the proper perspective, we travel that route. A. Court-Ordered, Assessments. The vast majority of appellants’ outlays comprise mandatory payments imposed by six orders of the district court. See Pretrial Order No. 48 (Feb. 11, 1988); Pretrial Order No. 67 (Apr." }, { "docid": "18609313", "title": "", "text": "’ date passed before Movants were named as defendants in the Reicherts’ Third Amended Original Petition on February 27, 1987. Granite concedes that Mov-ants could not have filed a proof of claim arising from the Texas PL Action for indemnification or contribution against the Pettibone Entities before the bar date. See, e.g., In re Hudson Oil Co., Inc., 100 B.R. 72, 78 (Bankr.D.Kan.1989) (“cause” to file a late claim exists where bar date has passed before the creditor knows of the existence of the claim). Granite contends, however, that Movants had an obligation to file their proofs of claim within a reasonable time and that the approximately 20 month period between when Movants were served with the Reicherts’ Third Amended Original Petition and the time they moved for leave to file their proofs of claim for contribution and indemnification was too long. Specifically, Granite asserts that “[Movants’] attorneys, whether litigation counsel, national oversight litigation counsel, corporate counsel or otherwise, failed to act within a reasonable time after being brought into the [Texas PL Action] to file a proof of claim to preserve their contribution rights.” Granite Br. at 10. At trial, Granite’s counsel stated that a reasonable time for Movants to have filed their proofs of claim would have been in July of 1987. 9.The parties have devoted a substantial amount of effort to the issue of when exactly Movants had sufficient knowledge to file their proofs of claim for indemnification and contribution. Granite essentially asserts that this possibility should have been recognized as soon as Movants saw that they were named as co-defendants with some of the Pettibone Entities in a case arising from an accident involving a Pettibone forklift. Movants counter that they did not have a sufficient basis to file a proof of claim until after the deposition of the Reicherts’ experts, Greene and Rhoades, in October and November of 1988. 10. Movants’ counsel in the Texas PL Action, while sensitive to the legal possibility of filing a cross-claim, was not fully cognizant that a viable cross-claim existed at the time they received the Third Amended Original" }, { "docid": "2665359", "title": "", "text": "against those defendants named in their complaint. . The relevant portion of the district court order reads as follows: (9) The answer of each defendant to the consolidated complaint (or latest amended complaint) in each of the above-captioned actions shall be deemed to assert cross-claims against all the other defendants therein for such sharing of liability in the nature of contribution and indemnification as exists under the Securities Act of 1933 (15 U.S.C. § 77a et seq.) and the Securities Exchange Act of 1934 (15 U.S.C. § 78a et seq.) as well as by state statutory and common law, except insofar as any defendant shall in his answer decline to assert such claims against any other defendant; such claims to be deemed asserted in the following form: FIRST CROSS-CLAIM AGAINST ALL OTHER DEFENDANTS If plaintiffs recover judgment against the cross-claiming defendant, the cross-claiming defendant is, or may be, entitled to contribution under the Securities Act of 1933 (15 U.S.C. § 77(a) [77a] et seq.) and the Securi ties Exchange Act of 1934 (15 U.S.C. § 78(a) [78a] et seq.) from some or all of the defendants other than the cross-claiming defendant. SECOND CROSS-CLAIM AGAINST ALL OTHER DEFENDANTS If plaintiffs herein recover judgment against the cross-claiming defendant by reason of any of the acts, transactions or omissions alleged in the amended complaint, such judgment will have been brought about and caused wholly or primarily by the acts, transactions, commissions or omissions of some or all of the defendants and not by, or only secondarily by, any acts, transactions or omissions of the cross-claiming defendant. By reason of the foregoing, the cross-claiming defendant is, or may be, entitled to indemnification or contribution for all or part of any such judgment recovered by plaintiffs herein. and each defendant against whom such cross-claims have been asserted shall be deemed to have interposed answers to said cross-claims controverting the allegations contained therein and denying any liability in the nature of contribution or indemnification. All cross-claims asserting claims other than for shared liability as hereinbefore described remain unaffected by the foregoing provisions of this order. FRIENDLY," }, { "docid": "2665358", "title": "", "text": "a penultimate draft. It is to coordinate all the claims, and there can be one filed tomorrow and one after that, the day after tomorrow. The whole purpose of this complaint is to get organized for the discovery and pre-trial phase. The order that I entered specifically recites that the pleadings in each constituent action stand, and when you go back to trial, the constituent actions will determine what will be tried and how, unless when we get to the trial it is agreed that a consolidation of the constituent complaints can be made. But for present purposes you have got to start somewhere, and the amended consolidated complaint is intended to wrap up all the claims so that we can get on with the business of discovery. . Garber v. Randell, supra at 717, n. 4; But see MacAlister v. Guterma, supra at 69 in which the Court stated that the district courts lack this authority. . Plaintiffs Sy Sussman and Ruth Sussman have directed liaison counsel to assert claims on their behalf only against those defendants named in their complaint. . The relevant portion of the district court order reads as follows: (9) The answer of each defendant to the consolidated complaint (or latest amended complaint) in each of the above-captioned actions shall be deemed to assert cross-claims against all the other defendants therein for such sharing of liability in the nature of contribution and indemnification as exists under the Securities Act of 1933 (15 U.S.C. § 77a et seq.) and the Securities Exchange Act of 1934 (15 U.S.C. § 78a et seq.) as well as by state statutory and common law, except insofar as any defendant shall in his answer decline to assert such claims against any other defendant; such claims to be deemed asserted in the following form: FIRST CROSS-CLAIM AGAINST ALL OTHER DEFENDANTS If plaintiffs recover judgment against the cross-claiming defendant, the cross-claiming defendant is, or may be, entitled to contribution under the Securities Act of 1933 (15 U.S.C. § 77(a) [77a] et seq.) and the Securi ties Exchange Act of 1934 (15 U.S.C. §" }, { "docid": "13088618", "title": "", "text": "that defendants’ application for cross-claims and third-party practice is untimely. The four operative complaints in this matter were filed in 1998 and 1999. As noted earlier, defendants Drabinsky and Gottlieb filed answers in April and June 2000, respectively. Both defendants filed amended answers in November 2001. Between the filing of their answers and the formal request for third-party practice, over six months went by after the Court’s Decisions of June 29, 2001. At a minimum, defendants Drabinsky and Gottlieb have had knowledge of facts upon which to move for third-party practice for a year and a half. Therefore, the proposed cross-claims and third-party claims are untimely and permitting them would delay the pending proceedings. Under similar circumstances, Courts in this District have consistently denied leave to assert third-party claims. See Murphy v. Keller Indus., Inc., 201 F.R.D. 317 (S.D.N.Y.2001); see also Richardson Greenshields Securities, Inc. v. Lau, 113 F.R.D. 608 (S.D.N.Y.1986). On this basis alone, leave to assert cross-claims and third-party claims may be denied. Furthermore, the Court notes that even if defendants’ application was timely made, most, if not all, of the claims that Drabin-sky and Gottlieb seek to make would be futile. As the parties have noted, cross-claims under rule 13(g) of the Federal Rules of Civil Procedure may only be asserted against a “co-party.” Courts have unanimously held that once a defendant has been dismissed from the action, that defendant ceases to be the “co-party” of another defendant for rule 13(g) purposes. See Wake v. United States, 89 F.3d 53, 62-63 (2d Cir.1996); see also Glaziers and Glassworkers Union v. Newbridge Securities, Inc., 823 F.Supp. 1188, 1190 (E.D.Pa. 1993). Therefore, to the extent that Dra-binsky and Gottlieb contemplated cross-claims against parties who have been dismissed either by this Court’s ruling or by stipulation among the parties, those claims are untenable. With respect to defendants’ claims of indemnification, the Court concurs with the long line of cases which hold that a defendant in a securities fraud action is prohibited from availing himself of indemnification. Permitting claims of indemnification by alleged perpetrators of fraud would run counter to the" }, { "docid": "17030212", "title": "", "text": "requirements for these papers still apply.” Moore’s Federal Practice (3rd ed.1999), § 5.31[3][c] (Emphasis added). The Court simply finds no authority, and the Movants cite no authority, for the proposition that counter-claims or cross-claims for contribution properly may be “deemed” filed, notwithstanding the procedure set forth in the Second Amended Case Management Order. As a result, the Court is compelled to agree that no viable counter-claims or cross-claims for contribution presently exist. Consequently, the Court, sua sponte, will grant the Respondent Group leave to file claims for contribution under Section 113(f) of CERCLA. Such claims shall be filed within fourteen days from date. Having resolved the five arguments raised by Certain Parties, the Court turns now to an issue raised by Defendant Burns Iron & Metal Company (“Burns”). In its Memorandum (Doc. # 357), Burns contends that a genuine issue of material fact exists as to the Government’s entitlement to summary judgment on the issue of the Defendants’ joint and several liability under § 107(a) of CERCLA. Like the arguments advanced by Certain Parties above, Bums’ argument has widespread applicability to all of the Defendants. In its Memorandum, Burns insists that summary judgment on the issue of liability is premature, because the harm caused by the release of hazardous substances at the USLC Site is arguably divisible. Burns insists that this issue must be resolved through an evidentiary hearing, before the Court resolves the Motion for Partial Summary Judgment. After reviewing the parties’ respective arguments, the Court agrees with Bums that a genuine issue of material fact exists as to the Defendants’ joint and several liability to the Government under § 107(a). The Court cannot agree, however, that the existence of such a factual dispute precludes it from determining whether the United States has established any liability (regardless of whether such liability is strict and joint and several, or merely strict), as a matter of law. In other words, in the context of summary judgment, the Court cannot determine the type of liability the Defendants may face under CERCLA. Nevertheless, the Court still may determine whether the United States has" }, { "docid": "17030204", "title": "", "text": "expenses while performing a response action in compliance with the terms of the Consent Decree. Pursuant to 40 C.F.R. § 300.700(c)(3)(h), such expenses are per se consistent with the NCP. As a result, the Court rejects Certain Parties’ argument that the Respondent Group has not established that it incurred any response costs consistent with the NCP. Fifth, the Court agrees with Certain Parties’ argument that no viable contribution claims exist, because no such claims have been filed by the Respondent Group. In support of their argument, Certain Parties properly note that the Respondent Group has never actually filed a claim for contribution, pursuant to Section 113(f) of CERCLA, against anyone in this action. Instead, the Court established the following procedure in its Second Amended Case Management Order: The Plaintiffs Complaint is deemed to be asserted against each new defendant unless the Court is advised otherwise .... The defendants who are members of the Settling Group are deemed to have asserted cross-claims for contribution against all other defendants. All new defendants are deemed to have asserted crossclaims or counterclaims for contribution against all other parties, except for defendants who are members of the Settling Group who will receive contribution protection under the Consent Decree. All such counterclaims and crossclaims are deemed denied. (Doc. # 178 at 2). It is clear that those who are themselves liable for response costs must bring an action for contribution under § 113(f) of CERCLA. Centerior, 153 F.3d at 348. Although the Court previously “deemed” contribution claims to have been filed, Certain Parties insist that such a procedure is contrary to the Federal Rules of Civil Procedure. In support, they cite Ninth Avenue Remedial Group v. Allis-Chalmers Corp., No. 2:94-CV-331-RL (N.D.Ind. Sept.25, 1996) (Lozano, J.), an unreported decision from the United States District Court for the Northern District of Indiana. Although the Movants do not address the substance of Certain Parties’ legal argument, they insist that “the great weight of authority” supports the practice of “deeming” contribution claims to have been filed. (Doc. #374 at 16-17). Indeed, the Movants do cite several cases in which district" }, { "docid": "23282804", "title": "", "text": "a. Plaintiffs’ motion to amend the complaint by adding the United States government and many of its officials on a theory of constitutional tort is denied. The issues sought to be raised by plaintiffs through the amendment are sufficiently different from those presented by this already complex litigation to require that the constitutional claims against government officials and the government itself be pursued by one or more separate actions, if plaintiffs are so inclined. Denial of the motion, therefore, is without prejudice to whatever rights plaintiffs may have to assert those claims in separate proceedings. b. Jurisdiction and pleadings. There is some confusion as to the precise state of the pleadings in the many pending actions. The court has not yet determined what precise disposition will be made of the various individual actions in light of the class certification. Unless a party files in a particular action a notice disclaiming the benefit afforded by the following, all of the pleadings in all cases now or hereafter filed under MDL 381 are deemed amended as follows: 1. The complaints are deemed amended to allege the residence of the plaintiffs, and to name and allege the residence of each of the defendants whose citizenship is diverse from that of the plaintiff. All plaintiffs are deemed to have joined all diverse defendants as defendants in their individual actions. 2. All defendants are deemed to have answered all complaints brought against them, with general denials plus all affirmative defenses thus far raised in filed answers to any of the Agent Orange MDL cases. All answers are deemed to include crossclaims for indemnification and contribution against all other defendants. All crossclaims are deemed denied. The court recognizes that (1) any case management plan may have to be changed in order to adapt to new or unforeseen circumstances; (2) not every facet of the plan adopted for this Agent Orange litigation will please everyone; and (3) this litigation presents problems of a type and magnitude that differ substantially from the established precedents so that it cannot proceed in one of the well established patterns for lawsuits." }, { "docid": "17030211", "title": "", "text": "cross-claims and counterclaims “FILED AND DENIED”; similarly, Plaintiffs’ proposed order would deem that all Defendants have “asserted cross-claims and counterclaims.” As such, it appears that Plaintiffs want to dispense with asserting cross-claims and counterclaims at all, rather than just dispensing with service of those claims upon certain parties. The language of Rule 5(c) and its interpretation in Wright & Miller do not clearly indicate that the Rule provides authority for what Plaintiffs seem to request.... Ninth Avenue Remedial Group, No. 2:94— CV-331-RL, at 2-4. Upon review, the Court finds the foregoing reasoning to be persuasive. As the Ninth Avenue court recognized, nothing in Rule 5(c) authorizes a district court to dispense with the filing of cross-claims or counter-claims in complex, multi-party litigation. Rather, the Rule obviates the need for service of such claims in cases involving numerous defendants. Furthermore, a noted authority on the Federal Rules of Civil Procedure has concluded that “[wjhere the court has waived service of the pleadings on each of the parties because of the appearance of numerous defendants, the filing requirements for these papers still apply.” Moore’s Federal Practice (3rd ed.1999), § 5.31[3][c] (Emphasis added). The Court simply finds no authority, and the Movants cite no authority, for the proposition that counter-claims or cross-claims for contribution properly may be “deemed” filed, notwithstanding the procedure set forth in the Second Amended Case Management Order. As a result, the Court is compelled to agree that no viable counter-claims or cross-claims for contribution presently exist. Consequently, the Court, sua sponte, will grant the Respondent Group leave to file claims for contribution under Section 113(f) of CERCLA. Such claims shall be filed within fourteen days from date. Having resolved the five arguments raised by Certain Parties, the Court turns now to an issue raised by Defendant Burns Iron & Metal Company (“Burns”). In its Memorandum (Doc. # 357), Burns contends that a genuine issue of material fact exists as to the Government’s entitlement to summary judgment on the issue of the Defendants’ joint and several liability under § 107(a) of CERCLA. Like the arguments advanced by Certain Parties above," }, { "docid": "17030207", "title": "", "text": "States v. Conservation Chemical Co., 653 F.Supp. 152, 228 (W.D.Mo.1986) (noting the existence of “deemed filed” cross-claims); In re Orthopedic Bone Screw Products Liability Litigation, 1998 WL 118060 (E.D.Pa. Jan.12, 1998) (unpublished) (“For purposes of indemnification and contribution claims, all cross-claims among defendants, third-party defendants, fourth-party defendants, and any other classes of defendants ... such claims are deemed filed, answered, and denied.”). Contrary to the Movants’ argument, however, the foregoing cases are not persuasive authority for the proposition that cross-claims and counter-claims may be “deemed” to have been filed. In none of those cases did the district court analyze this issue or explain the source of its authority for “deeming” cross-claims and counter-claims to have been filed. After reviewing the unreported decision cited by Certain Parties, the Court agrees that such a practice is inconsistent with the Federal Rules of Civil Procedure. In Ninth Avenue Remedial Group, the district court overruled a motion to deem cross-claims and counter-claims under § 107 and § 113 of CERCLA to have been filed and denied. In so doing, Judge Rudy Lozano reasoned: The Motion[ ] at hand draw[s] on Federal Rule of Civil Procedure 5, which states in pertinent part as follows: In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs. Fed.R.Civ.P. 5(c). Rule 5(c) has not generated much interpretation in case law. However, one well-regarded authority has summed up the purpose and scope of the Rule: Rule 5(c) seeks to lessen the burden of service imposed upon individual defendants" }, { "docid": "17030206", "title": "", "text": "courts have “deemed” such claims to have been filed. (Id.). This Court also has located a number of cases involving complex, multi-party litigation, in which federal courts have “deemed” cross-claims and counter-claims to have been filed. See, e.g., United States v. Keystone Sanitation Co., Inc., 903 F.Supp. 803, 806 n. 1 (M.D.Pa.1995) (“In its initial case management order, the court deemed all original Defendants to have asserted contribution and indemnification crossclaims against one another.”); In re San Juan Dupont Plaza Hotel Fire Litigation, 802 F.Supp. 624, 633 n. 17 (D.Puerto Rico 1992) (noting the existence of a case management order under which cross-claims were automatically “deemed” filed); New Jersey Dept. of Environmental Protection v. Gloucester Environmental Management Serv., Inc., 719 F.Supp. 325, 330 (D.N.J.1989) (deeming cross-claims and counterclaims to have been filed and served without the necessity of formal pleading); Barton Solvents, Inc. v. Southwest Petro-Chem, Inc., 834 F.Supp. 342, 345 (D.Kan.1993) (recognizing the existence of an order under which “all third-party defendants, in general, were deemed to have filed cross-claims against each other”); United States v. Conservation Chemical Co., 653 F.Supp. 152, 228 (W.D.Mo.1986) (noting the existence of “deemed filed” cross-claims); In re Orthopedic Bone Screw Products Liability Litigation, 1998 WL 118060 (E.D.Pa. Jan.12, 1998) (unpublished) (“For purposes of indemnification and contribution claims, all cross-claims among defendants, third-party defendants, fourth-party defendants, and any other classes of defendants ... such claims are deemed filed, answered, and denied.”). Contrary to the Movants’ argument, however, the foregoing cases are not persuasive authority for the proposition that cross-claims and counter-claims may be “deemed” to have been filed. In none of those cases did the district court analyze this issue or explain the source of its authority for “deeming” cross-claims and counter-claims to have been filed. After reviewing the unreported decision cited by Certain Parties, the Court agrees that such a practice is inconsistent with the Federal Rules of Civil Procedure. In Ninth Avenue Remedial Group, the district court overruled a motion to deem cross-claims and counter-claims under § 107 and § 113 of CERCLA to have been filed and denied. In so doing," }, { "docid": "17030210", "title": "", "text": "forth in Rule 7(a). It should be emphasized that [R]ule 5(c) does not apply to service on numerous plaintiffs or to papers other than pleadings; all other papers must be served on the attorney for each party. Moreover the fifing requirement of Rule 5(d) is not affected by Rule 5(c). In fact, fifing in this context serves the function of providing notice to all defendants. 4B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1151, at pp. 437-438 (2d ed.1987) (footnotes omitted). Essentially, then, Rule 5(c) “is just a way of dispensing with” requiring service of “many copies” of pleadings in cases involving an “unusually large number [ ]” of defendants. Id. p. 438 (quoting Proceedings, Cleveland Institute on the Federal Rules, 1938, p. 209). Although appreciative of the parties’ efforts to streamline this case, the Court has reservations regarding Plaintiffs’ Motion. First, Plaintiffs appear to be reading more into Rule 5(c)- — which focuses on service of pleadings — than it provides. Plaintiffs Motion is captioned as one to deem cross-claims and counterclaims “FILED AND DENIED”; similarly, Plaintiffs’ proposed order would deem that all Defendants have “asserted cross-claims and counterclaims.” As such, it appears that Plaintiffs want to dispense with asserting cross-claims and counterclaims at all, rather than just dispensing with service of those claims upon certain parties. The language of Rule 5(c) and its interpretation in Wright & Miller do not clearly indicate that the Rule provides authority for what Plaintiffs seem to request.... Ninth Avenue Remedial Group, No. 2:94— CV-331-RL, at 2-4. Upon review, the Court finds the foregoing reasoning to be persuasive. As the Ninth Avenue court recognized, nothing in Rule 5(c) authorizes a district court to dispense with the filing of cross-claims or counter-claims in complex, multi-party litigation. Rather, the Rule obviates the need for service of such claims in cases involving numerous defendants. Furthermore, a noted authority on the Federal Rules of Civil Procedure has concluded that “[wjhere the court has waived service of the pleadings on each of the parties because of the appearance of numerous defendants, the filing" }, { "docid": "17030203", "title": "", "text": "in the form of an affidavit from Thad Slaughter, a regulatory specialist and scientist at EN-TACT, Inc., a Texas corporation engaged in environmental remediation contracting. (Doc. # 333 at Exh. 8). Slaughter avers, in relevant part: 4. The Respondent Group has contracted with ENTACT as its designated contractor to conduct the Remedial Action at the United Scrap Lead Superfund Site in Troy, Ohio[,] pursuant to the terms of the Consent Decree entered into with the United States and approved by the United States District Court for the Southern District of Ohio. Pursuant to the contract for Remedial Activities, the Respondent Group has paid ENTACT for its services. (Id. at ¶ 4). The existing Consent Decree does require the Respondent Group to hire a contractor to perform Remedial Action at the USLC Site. (See Doc. #246, Consent Decree at 13, et seq.). Consequently, the Court concludes that the expenses incurred by the Respondent Group for Slaughter’s services are consistent with the NCP, as a matter of law. The record reflects that the Respondent Group incurred the expenses while performing a response action in compliance with the terms of the Consent Decree. Pursuant to 40 C.F.R. § 300.700(c)(3)(h), such expenses are per se consistent with the NCP. As a result, the Court rejects Certain Parties’ argument that the Respondent Group has not established that it incurred any response costs consistent with the NCP. Fifth, the Court agrees with Certain Parties’ argument that no viable contribution claims exist, because no such claims have been filed by the Respondent Group. In support of their argument, Certain Parties properly note that the Respondent Group has never actually filed a claim for contribution, pursuant to Section 113(f) of CERCLA, against anyone in this action. Instead, the Court established the following procedure in its Second Amended Case Management Order: The Plaintiffs Complaint is deemed to be asserted against each new defendant unless the Court is advised otherwise .... The defendants who are members of the Settling Group are deemed to have asserted cross-claims for contribution against all other defendants. All new defendants are deemed to have asserted" }, { "docid": "3286766", "title": "", "text": "5. The early procedural history of the struggle is described in a previous opinion of this court, see United States v. Charles George Trucking Co., 823 F.2d 685 (1st Cir.1987), and need not be revisited. Thereafter, acting on plaintiffs’ motions for partial summary judgment, the district court adjudged appellants to be jointly and severally liable for the costs of cleanup. However, the court left open the question of the junior Georges’ liability due to factual disputes anent the degree of control that they exercised over the Site. In June of 1989, plaintiffs amended their complaints to add twenty-four generator and transporter defendants. In turn, these defendants brought third-party claims for contribution against thirty-one other putative generators. They also filed counterclaims against the plaintiffs, charging negligent regulation. Appellants emulated this tactic, serving similar counterclaims. The district court intervened to impose some structure on this welter of claims and cross-claims. By a case management order (CMO) dated April 12, 1990, Judge Woodlock deemed the third-party defendants to have asserted all available cross-claims and counterclaims against other parties, but precluded the plaintiffs from asserting claims directly against the third-party defendants. The judge supplemented the CMO in a subsequent bench ruling through which he limited development of so-called trans-shipment issues, that is, issues involving wastes hauled to the Site after first being dumped elsewhere. By the fall of 1991, the dust had settled. A new round of summary judgment motions had been heard (most were denied), and trialworthy issues had been identified as to the liability of all defendants, save only the appellants, and as to virtually all aspects of the remedial phase. Unresolved questions also remained as to the counterclaims asserted against the plaintiffs. The likelihood of lengthy litigation loomed large. Before too long, settlement negotiations began in earnest. After a fitful start, the district court appointed Chief Judge Tauro as a settlement master. Numerous meetings among the parties yielded an agreement by the plaintiffs, in essence, to extinguish all claims against the generators and transporters (including the third-party defendants) in exchange for a global “cash-out” payment of approximately $36,000,000. The generators and" }, { "docid": "18864938", "title": "", "text": "Disaster at Dupont Plaza Hotel, 660 F.Supp. 982 (J.P.M.L.1987) (per curiam). Judge Acosta’s stewardship proved “a model of judicial craftsmanship and practical ingenuity.” In re Nineteen Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603, 606 (1st Cir.1992). Among the many successful innovations that brought the litigation to a celeritous conclusion were (1) the creation of a Joint Document Depository (JDD), which housed and copied for distribution all discovery materials, see Pretrial Order No. 127 (Dec. 2, 1988), at 66; (2) the appointment of liaison, counsels (plaintiffs’ and defendants’), each of whom was responsible for dispersing filings among his or her constituents, see id. at 61-63; and (3) the formation of a Joint Discovery Committee (JDC) dedicated to devising means of expediting the litigation, see In re Recticel Foam Corp., 859 F.2d 1000, 1001 (1st Cir.1988) (describing operation of JDC). To fund these innovátions, the district court entered a series of case-management orders which imposed mandatory assessments upon all litigants. In this way, the court periodically requisitioned fresh monies as funds on hand were depleted. The orders were silent as to (i) whether or not the court planned to readjust defendants’ contributions in light of future developments, and (ii) the court’s authority, if any, to effectuate-such realloca-tions. Roughly two years after the first shots in the litigation had been fired, a group of defendants involved in the hotel’s ownership and operation settled with the plaintiffs (the fire victims and their families) and cross-claimed for indemnification against various insurers whose liability policies had expired before the fire started (the pre-fire insurers). On August 9, 1989, the plaintiffs followed the cross-claimants’’ lead, adding the pre-fire insurers as direct defendants under P.R. Laws Ann. tit. 26, §§ 2001, 2003 (1976). Because discovery had formally closed on December 15, 1988, see Pretrial Order No. 127, at 96-97, the pre-fire insurers’ investigation of the newly emergent claims against them necessarily centered around a review of documents stored in the JDD. The pre-fire insurers quickly filed disposi-tive motions. The district court, faced with more pressing problems, was slow in addressing" }, { "docid": "17030373", "title": "", "text": "\"deemed” the original Complaint to be asserted against each new Defendant, unless the United States advised otherwise. (Id. at 2). Notably, however, an actual Complaint did exist at the time of the Court’s Order, as it had been filed in 1991 to commence this litigation. Furthermore, pursuant to the Court’s Second Amended Case Management Order, newly added Defendants were provided with, inter alia, a copy of that Complaint, two copies of a Waiver of Service of Summons and a Notice of Joinder under Fed.R.Civ.P. 20. That procedure is markedly different than \"deeming” non-existent cross-claims and counter-claims to be asserted when no such claims have been filed at all. Consequently, the Court is unpersuaded by Defendant Edison Automotive, Inc.’s assertion that it has never been sued by the Government and has never “received notice of the claims made against it .... ” (Doc. # 359 at 3). . In light of Certain Parties’ objection, the Court is compelled to agree that no contribution claims presently exist. At the same time, however, the Court questions the purpose of objecting to the procedure set forth in the Second Amended Case Management Order. The only practical effects of Certain Parties' objection are (1) to delay this litigation further while the Respondent Group files formal contribution claims, and (2) to cause the Respondent Group and the other Defendants to incur additional expenses filing formal Answers to those claims. . The Sixth Circuit used care to distinguish between “the divisibility defense to joint and several liability” and \"the equitable allocation principles available to defendants under CERCLA’s contribution provision.” Brighton, 153 F.3d at 319. As a defense to joint and several liability, the divisibility analysis must be reserved for cases in which causation is apportionable \"on a reasonable basis.” On the other hand, apportionment in the context of a § 113(f) claim for contribution may involve equitable concerns such as blame or fault. Id. . Burns has set forth the divisibility affirmative defense in its Answer (Doc. #215 at 4). . The Movants also rely on two other cases involving defendants who contributed different types of waste." }, { "docid": "17030372", "title": "", "text": "true and accurate copies of the exhibits identified by Bailen during his multiple depositions, the Court obviously does not expect the Movants to file an affidavit stating otherwise. If the Movants cannot file the requested affidavit, however, they must establish the authenticity of the exhibits in some other way. If they fail to do so, the Court will vacate its ruling herein, and reconsider the Motion for Partial Summary Judgment, without reviewing the invoices. . The Consent Decree defines the phrase \"Remedial Action” as “those activities, except for Operation and Maintenance, to be undertaken by the Settling Generator Defendants to implement all Work yet to be completed under the [Record of Decision] and its amendments, in accordance with the [Statement of Work] and the final Remedial Design and Remedial Action Work Plans and other plans approved by the U.S. EPA.” (Doc. # 246 at 8-9). . The Court reaches a different conclusion, however, regarding the Government’s claims against the Defendants in this action. In its Second Amended Case Management Order (Doc. # 178), the Court \"deemed” the original Complaint to be asserted against each new Defendant, unless the United States advised otherwise. (Id. at 2). Notably, however, an actual Complaint did exist at the time of the Court’s Order, as it had been filed in 1991 to commence this litigation. Furthermore, pursuant to the Court’s Second Amended Case Management Order, newly added Defendants were provided with, inter alia, a copy of that Complaint, two copies of a Waiver of Service of Summons and a Notice of Joinder under Fed.R.Civ.P. 20. That procedure is markedly different than \"deeming” non-existent cross-claims and counter-claims to be asserted when no such claims have been filed at all. Consequently, the Court is unpersuaded by Defendant Edison Automotive, Inc.’s assertion that it has never been sued by the Government and has never “received notice of the claims made against it .... ” (Doc. # 359 at 3). . In light of Certain Parties’ objection, the Court is compelled to agree that no contribution claims presently exist. At the same time, however, the Court questions the purpose" }, { "docid": "17030205", "title": "", "text": "crossclaims or counterclaims for contribution against all other parties, except for defendants who are members of the Settling Group who will receive contribution protection under the Consent Decree. All such counterclaims and crossclaims are deemed denied. (Doc. # 178 at 2). It is clear that those who are themselves liable for response costs must bring an action for contribution under § 113(f) of CERCLA. Centerior, 153 F.3d at 348. Although the Court previously “deemed” contribution claims to have been filed, Certain Parties insist that such a procedure is contrary to the Federal Rules of Civil Procedure. In support, they cite Ninth Avenue Remedial Group v. Allis-Chalmers Corp., No. 2:94-CV-331-RL (N.D.Ind. Sept.25, 1996) (Lozano, J.), an unreported decision from the United States District Court for the Northern District of Indiana. Although the Movants do not address the substance of Certain Parties’ legal argument, they insist that “the great weight of authority” supports the practice of “deeming” contribution claims to have been filed. (Doc. #374 at 16-17). Indeed, the Movants do cite several cases in which district courts have “deemed” such claims to have been filed. (Id.). This Court also has located a number of cases involving complex, multi-party litigation, in which federal courts have “deemed” cross-claims and counter-claims to have been filed. See, e.g., United States v. Keystone Sanitation Co., Inc., 903 F.Supp. 803, 806 n. 1 (M.D.Pa.1995) (“In its initial case management order, the court deemed all original Defendants to have asserted contribution and indemnification crossclaims against one another.”); In re San Juan Dupont Plaza Hotel Fire Litigation, 802 F.Supp. 624, 633 n. 17 (D.Puerto Rico 1992) (noting the existence of a case management order under which cross-claims were automatically “deemed” filed); New Jersey Dept. of Environmental Protection v. Gloucester Environmental Management Serv., Inc., 719 F.Supp. 325, 330 (D.N.J.1989) (deeming cross-claims and counterclaims to have been filed and served without the necessity of formal pleading); Barton Solvents, Inc. v. Southwest Petro-Chem, Inc., 834 F.Supp. 342, 345 (D.Kan.1993) (recognizing the existence of an order under which “all third-party defendants, in general, were deemed to have filed cross-claims against each other”); United" } ]

[ { "docid": "19234832", "title": "", "text": "of freight charges.” Id. at 422 (citing Cent. Freight. Lines, Inc. v. United States, 87 Fed.Cl. 104, 112 (2009); Cent. Transp. Int’l, Inc. v. United States, 63 Fed.Cl. 336, 340 (2004)). Estes timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). Discussion We review de novo whether the Claims Court possessed jurisdiction. Maher v. United States, 314 F.3d 600, 603 (Fed.Cir.2002). The plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as true all uncontroverted factual allegations in the complaint, and construes them in the light most favorable to the plaintiff. See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed.Cir.1993). The Tucker Act, 28 U.S.C. § 1491, confers jurisdiction on the Claims Court and waives sovereign immunity for certain claims for monetary relief against the United States. But the Tucker Act itself does not create a substantive cause of action; to demonstrate that the Claims Court has jurisdiction to entertain its claim under the Tucker Act, the plaintiff must identify a constitutional provision, federal statute, executive agency regulation, or “any express or implied contract with the United States” that creates the right to money damages. See 28 U.S.C. § 1491(a)(1). Estes advances two grounds upon which it argues the Claims Court has Tucker Act jurisdiction. First, Estes asserts a claim based on contract, arguing that a contractual relationship with the Government exists either directly under the bills of lading or, alternatively, because Salem acted as an agent of the Government, binding the Government under a “deemed privity” theory. Second, Estes asserts a claim under 49 U.S.C. § 13706, arguing that the Government is directly liable as the consignee and owner of the freight. To maintain a cause of action under the Tucker Act based on a contract, Estes must show that there is a contract directly between itself and the Government, i.e., that there is privity of contract. See Cienega Gardens v." } ]

[ { "docid": "4548524", "title": "", "text": "States District Court and, therefore, does not have jurisdiction over claims arising under 28 U.S.C. § 1331.” Hall v. United States, 69 Fed.Cl. 51, 56 (2005); see Faulkner v. United States, 43 Fed.Cl. 54, 55 (1999) (“The Court of Federal Claims does not have federal question jurisdiction under 28 U.S.C. § 1331.”). It is the Tucker Act that establishes and limits the jurisdiction of this court. See 28 U.S.C. § 1491. The Tucker Act provides this court with jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” Id. § 1491(a)(1). The Tucker Act provides this court with jurisdiction only over claims “against the United States.” Id. The amended Complaint, however, names HUD and the Attorney General of the United States as defendants. See Am. Compl. 1. Because both of plaintiffs named defendants are agents of the United States, the court will construe the complaint as a claim against the United States. Cf. Def.’s Mot. 7 n. 4 (stating that “but for the jurisdictional defects” alleged by defendant in defendant’s Motion, “this [c]ourt may consider [plaintiffs] breach of contract allegations against the United States pursuant to its Tucker Act jurisdiction”). To the extent that defendant moves to dismiss HUD and the Attorney General of the United States as named defendants in this case, id. at 6-7, defendant’s Motion is GRANTED-IN-PART. 2. 28 U.S.C. § 1500 Even if a plaintiff has met the jurisdictional requirements of the Tucker Act, subject matter jurisdiction may nevertheless be barred by 28 U.S.C. § 1500. Kingman Reef Atoll Invs., L.L.C. v. United States, 103 Fed.Cl. 660, 685 (2012). Section 1500 states in full: The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at" }, { "docid": "3133737", "title": "", "text": ". The Court of Claims is now known as the United States Court of Federal Claims. See 28 U.S.C. § 171 (1993); Pub.L. No. 102-572, 106 Stat. 4506. . The Tucker Act provides, in relevant part: The United States Court of Federal Claims shall have jurisdiction upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1) (1994). . The Court of Claims’ (now the United States Court of Federal Claims) jurisdiction over Indian claims is defined, by 28 U.S.C. § 1505: The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group. 28 U.S.C. § 1505 (1994). .The \"Little” Tucker Act provides in relevant part: (a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: (2) Any other civil action or claim against the United States, not exceeding $ 10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliqui-dated damages in cases not sounding in tort. 28 U.S.C. § 1346(a)(2) (1993). . This statute of limitations barred the Tribes’ challenges to the 1972 Act in Sisseton I, 686 F.Supp. at 836-37 and Sisseton II, 895 F.2d at 590. The Eighth Circuit also applied this statute of limitations in Loudner, 108 F.3d at 900," }, { "docid": "2762075", "title": "", "text": "either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliq-uidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). As the Supreme Court has explained, the understanding that claims for more than $10,000 are within the exclusive jurisdiction of the Court of Federal Claims “is not based on any language in the Tucker Act granting such exclusive jurisdiction to the Claims Court. Rather, that court's jurisdiction is 'exclusive' only to the extent that Congress has not granted any other court authority to hear the claims that may be decided by the Claims Court.” Bowen v. Massachusetts, 487 U.S. 879, 910 n. 48, 108 S.Ct. 2722, 2740 n. 48, 101 L.Ed.2d 749 (1988). . In the district court, the plaintiffs argued that the Tucker Act’s grant of jurisdiction to the Court of Federal Claims does not control this case because, in their view, the Act applies only to complaints seeking damages from appropriated funds of the United States. The Defense Commissary Agency, the plaintiffs asserted, is a \"nonappropriated funds instrumentality.” The district court did not decide whether the plaintiffs were correct about the applicability of the Tucker Act to non-appropriated funds instrumentalities, because it ruled that the Defense Commissary Agency does in fact receive appropriated funds. Wafers, Mem. Op. at 12. The plaintiffs do not appeal that ruling. . The government initially moved to transfer this appeal to the United States Court of Appeals for the Federal Circuit. Under 28 U.S.C. § 1295(a)(2), that court — with certain exceptions not relevant here — has exclusive jurisdiction over the appeal of any case in which the jurisdiction of the district court was founded \"in whole or in part\" on the Little Tucker Act. Id. § 1295(a)(2). Section 1295(a)(2) is inapplicable here, however, in light of our conclusion that the district court's jurisdiction was not properly based on the Little Tucker Act in any part. At oral argument, both parties agreed that if we so concluded, the appropriate disposition" }, { "docid": "22795717", "title": "", "text": "question of law, which we review de novo. Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1078 (Fed.Cir.2001). We review a denial of a request for additional discovery for abuse of discretion. Digeo, Inc. v. Audible, Inc., 505 F.3d 1362, 1370 (Fed.Cir.2007); Forest Prods. N.W., Inc. v. United States, 453 F.3d 1355, 1359 (Fed.Cir.2006). A decision by the Court of Federal Claims concerning whether to dismiss a claim or transfer it to another court is also reviewed for abuse of discretion. LeBlanc v. United States, 50 F.3d 1025, 1031 (Fed.Cir.1995). The underlying determination of whether the transferee court has jurisdiction over the claim is a question of law, which we review de novo. Acceptance Ins. Cos. v. United States, 503 F.3d 1328, 1332 (Fed.Cir.2007). Ill A Rick’s argues that the Court of Federal Claims erred in dismissing its claims for lack of subject matter jurisdiction. The jurisdictional reach of the Court of Federal Claims is set forth in the Tucker Act. The Tucker Act provides: (1) The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. ... ... The Court of Federal Claims shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act of 1978, including a dispute concerning termination of a contract, rights in tangible or intangible property, compliance with cost accounting standards, and other nonmonetary disputes on which a decision of the contracting officer has been issued under section 6 of that Act. 28 U.S.C. § 1491(a) (emphases added). The plain language of the Tucker Act excludes from the Court of Federal Claims jurisdiction claims sounding in tort. Id. § 1491(a)(1). A claim for professional negligence is a tort claim. GlobalNet Financial.Com, Inc. v. Frank Crystal & Co., 449 F.3d" }, { "docid": "15427858", "title": "", "text": "28 U.S.C. § 1631. (Pl.’s Resp. to Def.’s Mot. to Dismiss at 1-2, May 2, 2011.) After due consideration, the Court grants Defendant’s motion to dismiss for lack of subject matter jurisdiction and denies Mr. Hairston’s request for transfer. Discussion A This Court Lacks Jurisdiction to Adjudicate Mr. Hairston’s Claims. Although Mr. Hairston is a pro se plaintiff, he still “bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.” See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Flowers v. United States, 80 Fed.Cl. 201, 211-12 (2008). Mr. Hairston has not met this burden. The Tucker Act, 28 U.S.C. § 1491, limits the jurisdiction of the United States Court of Federal Claims to “claim[s] against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliq-uidated damages in eases not sounding in tort.” § 1491(a)(1). First, this provision means that “the only proper defendant for any matter before this court is the United States, not its officers, nor any other individual.” Stephenson v. United States, 58 Fed.Cl. 186, 190 (2003) (emphasis in original) (citing United States v. Sherwood, 312 U.S. 584, 589, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). Therefore, this Court must dismiss Mr. Hair-ston’s claims against the FBOP Director and other prison staff. Second, the Tucker Act specifically states that the Court of Federal Claims lacks jurisdiction over claims sounding in tort. § 1491(a)(1). This Court thus lacks jurisdiction over Mr. Hairston’s FTCA and Bivens actions, both of which seek redress for constitutional torts. See Brown v. United States, 105 F.3d 621, 624 (Fed.Cir.1997) (“Bi vens actions ... lie outside the jurisdiction of the Court of Federal Claims.”); see also Pendleton v. United States, 47 Fed.Cl. 480, 485-86 (2000) (stating that the Court of Federal Claims lacks jurisdiction to entertain a tort claim under the FTCA). Furthermore, the Tucker Act grants this Court jurisdiction only over claims derived from money-mandating sources of law." }, { "docid": "5747579", "title": "", "text": "a case is a threshold matter, and, if no jurisdiction exists, the Court must order dismissal without proceeding further. 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). In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as true all undisputed facts in the plaintiffs complaint and draws all reasonable inferences in favor of the plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.Cir.2011). The plaintiff, however, bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Id. In filing its takings claims in this court, Solid Rock Ministry invokes this court’s jurisdiction under the Tucker Act, which authorizes the Court of Federal Claims to render judgment upon “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a). Claims for damages under the Takings Clause of the Fifth Amendment are within this Court’s Tucker Act jurisdiction. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1309 (Fed.Cir.2008). Indeed, as noted above, the Court of Federal Claims possesses exclusive jurisdiction over such claims when damages exceed $10,000. § 1346(a)(2). The Court of Federal Claims’ Tucker Act jurisdiction is, however, limited by 28 U.S.C. § 1500. That statute provides that the Court of Federal Claims lacks subject matter jurisdiction “of any claim for or in respect to which the plaintiff ... has pending in any other court any suit or process against the United States____” Id. As the court of appeals has observed, two inquiries are required to determine the applicability of the jurisdictional bar contained in § 1500: “(1) whether there is an earlier-filed ‘suit or process’ pending in another court, and, if so, (2) whether the claims asserted in the earlier-filed case are ‘for or in respect to’ the same elaim(s) asserted in the" }, { "docid": "15900638", "title": "", "text": "and that section 206(d) prohibits payment of compensation to him for correspondence courses. In addition to responding to Mr. Clark’s appeal on the merits, the government renews its assertion that the Court of Federal Claims lacked jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). ANALYSIS I. Jurisdiction Whether the Court of Federal Claims properly exercised jurisdiction over a case is a question of law that we review de novo. Wheeler v. United States, 11 F.3d 156, 158 (Fed.Cir.1993). In this case, the court exercised jurisdiction under the Tucker Act, 28 U.S.C. § 1491, which states in pertinent part as follows: (1) The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a) (2000). Jurisdiction in the Court of Federal Claims is proper under the Tucker Act if a “federal statute ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’” United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (quoting Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002, 1009 (Ct.Cl.1967)). However, the Tucker Act is merely a jurisdictional statute that allows a plaintiff to bring a substantive claim against the United States. Id. at 398, 96 S.Ct. 948. A plaintiff must still prove a substantive right that results in monetary recovery based upon the Constitution, a federal statute, or a regulation. Id. In this case, Mr. Clark alleges a substantive right under 37 U.S.C. § 206(a), so our inquiry must focus on whether section 206(a) is money-mandating. The jurisdictional issue in this case is controlled by Dehne v. United States, 970 F.2d 890 (Fed.Cir.1992). In Dehne, we held that section 206(a) “mandates pay for regular periods of instruction, periods of appropriate duty, and for performance of other equivalent duties.” Id." }, { "docid": "18232188", "title": "", "text": "(2011), the government moved to lift the stay and dismiss Brandt’s takings claim for lack of subject matter jurisdiction under 28 U.S.C. § 1500. In Tohono, the Supreme Court clarified that two suits “are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” Id. at 1731. Given this language, the government argued that, because Brandt’s takings claim in the Court of Federal Claims and his counterclaim in the district court were based on substantially the same operative facts, the court lacked jurisdiction under § 1500. In the November 30, 2011 decision at issue on appeal, the Court of Federal Claims granted the government’s motion and dismissed Brandt’s takings claim on grounds that § 1500 precluded jurisdiction. Specifically, the court found that: (1) Brandt’s case was “pending” within the meaning of § 1500 when he filed in the Court of Federal Claims because the time for filing a notice of appeal to the Tenth Circuit had not yet expired; and (2) Brandt’s takings claim filed in the Court of Federal Claims was “for or in respect to” the claims filed in Wyoming district court because they shared “substantially the same operative facts.” Brandt, 102 Fed.Cl. at 76. Brandt timely appealed those issues to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). DiscussioN We review the Court of Federal Claims’ decision to dismiss a case for lack of subject matter jurisdiction de novo. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.Cir.2011). It is well-established that the plaintiff bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence. Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.2002). While the Tucker Act, 28 U.S.C. § 1491(a)(1), grants the Court of. Federal Claims jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated" }, { "docid": "20370089", "title": "", "text": "398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). An action may be maintained under the Tucker Act only if it is “founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (1992). Gould relies solely on its contract with the government, the ’0407 Contract, as a basis for jurisdiction in the Court of Federal Claims. The government argues that the contracting officer lacked actual authority to enter into an express or implied-in-fact contract with Gould, and therefore Gould’s only theory of recovery is under an implied-at-law claim which is outside the jurisdiction of the Court of Federal Claims. In its amended complaint Gould alleged that its procurement contract with the government was entered into in violation of law since the government did not provide a “stable design” as required in 10 U.S.C. § 2306(h)(1)(D). Given Gould’s allegation, argues the government, no contract (express or implied-in-fact) could have arisen because a contracting officer does not have actual authority to enter into illegal contracts. Therefore, the government argues, the Court of Federal Claims correctly found that the only possible basis for contract jurisdiction is a contract implied-at-law. Since it is well established that such claims are outside the jurisdiction of the Court of Federal Claims, the government concludes that the trial court properly dismissed Gould’s amended complaint for lack of jurisdiction. As an initial matter, the government mischaracterizes the issue in this case. In Spruill v. Merit Sys. Protection Bd., 978 F.2d 679 (Fed.Cir.1992), we discussed the differences between a dismissal for lack of jurisdiction and a dismissal for failure to state a claim upon which relief can be granted. Jurisdiction in this context refers to the power of a court to hear and decide a case— subject matter jurisdiction. Id. at 686. A dismissal for lack of jurisdiction means that the subject-matter of the dispute is one that the court is not empowered to hear and" }, { "docid": "16848829", "title": "", "text": "instead “may consider [other] relevant evidence in order to resolve the factual dispute.” Reynolds, 846 F.2d at 747; see also Moyer, 190 F.3d at 1318. As a sovereign, “the United States may be sued only to the extent that it has consented to suit by statute, and the terms of that consent define the jurisdiction of the court to hear those suits.” Shore v. United States, 9 F.3d 1524, 1525 (Fed.Cir.1993) (citing United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). Plaintiffs’ complaint generally alleges subject matter jurisdiction under 1) the Tucker Act, 28 U.S.C. § 1491(a)(1) (2006); and 2) 28 U.S.C. § 1505 (2006), which prescribes the court’s jurisdiction over claims against the United States by or on behalf of American Indians. The Tucker Act “confers jurisdiction upon the Court of Federal Claims over the specified categories of actions brought against the United States, and ... waives the Government’s sovereign immunity for those actions.” 28 U.S.C. § 1491(a)(1); Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc); see also Emery Worldwide Airlines, Inc. v. United States, 49 Fed.Cl. 211, 220 (2001), aff'd, 264 F.3d 1071 (Fed.Cir.2001). The Tucker Act grants jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” § 1491(a)(1). Additionally, § 1505 further establishes the Court of Federal Claims’ jurisdiction, allowing the court to hear any claim against the United States in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would not be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group. 28 U.S.C. § 1505. II. Whether plaintiffs’" }, { "docid": "15427857", "title": "", "text": "by the doctrine of sovereign immunity. Id. Mr. Hairston alleges that the named Defendants violated the Eighth Amendment by denying him proper treatment for a chronic back condition, and that they also violated his constitutional rights by transferring him to a different prison each time he had exhausted his administrative remedies in order to prevent his access to the courts. (Compl. ¶¶ 1-7, Mar. 4, 2011.) As relief, he seeks ti’ansfer to a “medical facility or camp” as well as $12,000,000 in damages to compensate him for ten years of severe back pain. Id. ¶¶ 6-7. On April 12, 2011, the Court granted Mr. Hairston leave to proceed in forma pauperis. The United States moved to dismiss Mr. Hairston’s Complaint and First Amended Complaint for lack of subject matter jurisdiction. (Def.’s Mot. to Dismiss at 1, Apr. 20, 2011.) In response, Mr. Hairston argues that the Court should find jurisdiction under 28 U.S.C. § 1346, or it should transfer his Amended Complaint to the United States District Court for the District of Columbia pursuant to 28 U.S.C. § 1631. (Pl.’s Resp. to Def.’s Mot. to Dismiss at 1-2, May 2, 2011.) After due consideration, the Court grants Defendant’s motion to dismiss for lack of subject matter jurisdiction and denies Mr. Hairston’s request for transfer. Discussion A This Court Lacks Jurisdiction to Adjudicate Mr. Hairston’s Claims. Although Mr. Hairston is a pro se plaintiff, he still “bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.” See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Flowers v. United States, 80 Fed.Cl. 201, 211-12 (2008). Mr. Hairston has not met this burden. The Tucker Act, 28 U.S.C. § 1491, limits the jurisdiction of the United States Court of Federal Claims to “claim[s] against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliq-uidated damages in eases not sounding in tort.” § 1491(a)(1). First, this provision means that" }, { "docid": "76691", "title": "", "text": "“the Court of Appeals [for the Ninth Circuit] held that only the Court of Federal Claims can resolve the issue as to whether or not the United States Government is liable to pay Bianchi for his Value Engineering Change Proposal awards.” Although the remainder of the complaint is hardly a model of clarity, we view the above-quoted statements as sufficient to support Bianchi’s breach of contract claim under a notice pleading standard. We further hold that the Court of Federal Claims had jurisdiction over Bian-chi’s claims to the extent that they allege a breach of the 1988 settlement agreement by the government. The Tucker Act confers jurisdiction upon the Court of Federal Claims for “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliqui-dated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). On appeal, the parties do not dispute that the 1988 settlement agreement is an express contract between Bianchi and the government and that breach of the contract by the government gives rise to jurisdiction in the Court of Federal Claims. We agree. See Massie v. United States, 166 F.3d 1184, 1188-89 (Fed.Cir.1999) (upholding jurisdiction in the Court of Federal Claims for a suit alleging breach of a settlement agreement by the United States). Thus, we conclude that the Court of Federal Claims had jurisdiction to the extent that Bianchi alleges a breach of the 1988 settlement agreement. Because we hold that the Court of Federal Claims had jurisdiction over the breach claims, it is necessary to reach the court’s alternative holdings with respect to the VECP I and VECP II awards. B Next, Bianchi argues that the Court of Federal Claims erred in holding that it did not have jurisdiction over his claim for the VECP I royalties because it held that the claim was time-barred. He argues that the government breached the 1988 settlement agreement in 1999 when the government paid “his” VECP I royalties" }, { "docid": "9753929", "title": "", "text": "offered no precedent to support their theory of an implied-in-fact contract. Id. at 59. Thus, the court found plaintiffs’ claims to be one of those “instances in which a claim that is otherwise within the court’s jurisdiction is so insubstantial on its merits that a dismissal may be termed jurisdictional.” Id. (quoting Lewis v. United States, 70 F.3d 597, 603 (Fed.Cir.1995)). According to the court, “[t]o acknowledge the possibility of the existence of a contract under these circumstances for the purposes of jurisdiction, only to, ultimately, find no contract in existence, is to undermine statutory and regulatory procedures carefully designed to address grievances associated with FCC licensing applications.” Id. The court therefore dismissed plaintiffs’ claims for breach of implied-in-fact contracts. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). ANALYSIS I. Whether the Court of Federal Claims properly dismissed plaintiffs’ amended complaint for lack of subject-matter jurisdiction is a question of law that we review de novo. W. Co. v. United States, 323 F.3d 1024, 1029 (Fed.Cir.2003). Subject-matter jurisdiction may be challenged at any time by the parties or by the court sua sponte. Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed.Cir.1998). In deciding whether there is subject-matter jurisdiction, “the allegations stated in the complaint are taken as true and jurisdiction is decided on the face of the pleadings.” Shearin v. United States, 992 F.2d 1195, 1195-96 (Fed.Cir.1993). II. In this case, plaintiffs allege subject-matter jurisdiction in the Court of Federal Claims under the Tucker Act, which provides as follows: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1) (2000). Although the Tucker Act waives the sovereign immunity of the federal government, it does not provide any substantive rights. United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct." }, { "docid": "20370088", "title": "", "text": "doctrine typically requires a lower court, on remand, to follow the decision of the reviewing court, the Court of Federal Claims concluded that the law of the case doctrine did not apply for two reasons: first, subsequent controlling authority, namely Richmond, conflicts with our decision in Gould II; and second, the issues before the trial court were not addressed by the Court of Appeals in Gould II. Therefore, the Court of Federal Claims granted the government’s motion, dismissing Gould’s complaint. This appeal followed. DISCUSSION I. Whether a motion to dismiss for lack of jurisdiction has been properly granted is a question of law subject to complete and independent review on appeal. Shearin v. United States, 992 F.2d 1195 (Fed.Cir.1993). Gould’s amended complaint maintains that jurisdiction of this action lies in the Court of Federal Claims pursuant to the Tucker Act, 28 U.S.C. § 1491. The Tucker Act “is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). An action may be maintained under the Tucker Act only if it is “founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (1992). Gould relies solely on its contract with the government, the ’0407 Contract, as a basis for jurisdiction in the Court of Federal Claims. The government argues that the contracting officer lacked actual authority to enter into an express or implied-in-fact contract with Gould, and therefore Gould’s only theory of recovery is under an implied-at-law claim which is outside the jurisdiction of the Court of Federal Claims. In its amended complaint Gould alleged that its procurement contract with the government was entered into in violation of law since the government did not provide a “stable design” as required in 10 U.S.C. § 2306(h)(1)(D). Given Gould’s allegation, argues the government," }, { "docid": "7255445", "title": "", "text": "“The United States, as sovereign, is immune from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The United States has waived immunity from suit in two instances that are pertinent to this case. First, the Tucker Act waives sovereign immunity in all actions brought in the Court of Federal Claims “founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliqui-dated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2000). Jurisdiction over such claims lies in the Court of Federal Claims unless another court is expressly provided with jurisdiction by statute. See Bowen v. Massachusetts, 487 U.S. 879, 910 n. 48, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (“It is often assumed that the [Court of Federal Claims] has exclusive jurisdiction of Tucker Act claims for more than $10,000.... That assumption is not based on any language in the Tucker Act granting such exclusive jurisdiction to the [Court of Federal Claims], Rather, that court’s jurisdiction is ‘exclusive’ only to the extent that Congress has not granted any other court authority to hear the claims that may be decided by the [Court of Federal Claims]”). Second, the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1), waives sovereign immunity as to claims arising in tort. The FTCA provides that district courts have jurisdiction in suits against the United States for claims 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. It is well established that where a tort claim stems from a breach of contract, the cause of action is ultimately one arising in" }, { "docid": "17783217", "title": "", "text": "standing alone, does not provide him with any independent substantive rights enforceable against the United States for money damages. Id., slip op. at 2-3 (internal citations omitted). The court also dismissed petitioner’s claims against AUSA Linhardt, noting that “this Court does not have jurisdiction to hear allegations against private parties. The Court’s jurisdiction extends only to suits against the United States.” Id., slip op. at 3. This timely pro se appeal followed. DISCUSSION I A decision of the Court of Federal Claims “to dismiss a complaint for lack of jurisdiction is a question of law subject to ... independent review by this court.” Shearin v. United States, 992 F.2d 1195, 1195 (Fed.Cir.1993). The petitioner (Mr. Sanders) bears the burden of proving that the Court of Federal Claims possessed jurisdiction over his complaint. Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir.1991). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(3). II On this appeal, Mr. Sanders does not challenge the Court of Federal Claims’ dismissal of AUSA Linhardt as an improperly named defendant. He urges, however, that he has properly stated a claim for money damages against the United States that is cognizable under the Tucker Act, 28 U.S.C. § 1491(a)(1). The Tucker Act gives the Court of Federal Claims jurisdiction over: [A]ny claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliq-uidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1) (1994). That statute constitutes a waiver of sovereign immunity as to those claims. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). It is well settled that the Court of Federal Claims’ jurisdiction under the Tucker Act to hear and decide contract claims against the United States “extends only to contracts either express or implied in fact, and not to claims on contracts implied in law.” Hercules, Inc. v. United States, 516 U.S. 417, 423, 116 S.Ct." }, { "docid": "19168872", "title": "", "text": "28 U.S.C. § 1491(a)(1) (2006), and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, and invoke the Eighth Amendment. See id. at 2 (citing 28 U.S.C. § 2674 and the Tucker Act in support of jurisdiction and stating that the “claim involves the 8th Amendment”). The United States (defendant or the government) has filed a motion to dismiss for lack of subject matter jurisdiction on the basis that “the Court does not possess jurisdiction to entertain claims that sound in tort.” Def.’s Mot. to Dismiss (defendant’s Motion or Def.’s Mot.), Dkt. No. 4, at 1. Now before the court are plaintiffs’ Complaint, filed December 10, 2012, and defendant’s Motion, filed February 8, 2013. Pursuant to the Rules of the United States Court of Federal Claims (RCFC), plaintiffs had thirty-one days to file a response to defendant’s Motion. See RCFC 7.2(b)(1) (allowing twenty-eight days to respond to a motion to dismiss); RCFC 6(d) (allowing three additional days when a motion to dismiss is served by mail). As of the date of this Opinion and Order, plaintiffs have failed to submit a response. Nevertheless, because the court finds that it lacks jurisdiction for the reasons stated below, defendant’s Motion is GRANTED and plaintiffs’ claims are dismissed. II. Legal Standards A. Motion to Dismiss for Lack of Subject Matter Jurisdiction Rule 12(b)(1) of the RCFC governs motions to dismiss for lack of subject matter jurisdiction. See RCFC 12(b)(1). Because subject matter jurisdiction is a threshold matter, it must be established before the ease can proceed on the merits. Steel Co. v. Citizens for a Better Env’t (Steel Co.), 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). Pursuant to the Tucker Act, this court has jurisdiction over “elaim[s] against the United States founded ... upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphasis added). Although" }, { "docid": "21447890", "title": "", "text": "governments’ liability under 42 U.S.C. § 1983. As to Mr. Ealy’s claims that sound in tort, the Tucker Act expressly excludes such claims from this Court’s jurisdiction. 28 U.S.C. § 1491(a)(1) (stating that the “Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States ... in cases not sounding in tort ” (emphasis added)); Brown, 105 F.3d at 623. Actions under the FTCA, 28 U.S.C. §§ 1346, 2671-80, are properly brought in the United States District Courts, not this one. See 28 U.S.C. § 1346(b)(1). And although Mr. Ealy also cites the Contract Disputes Act (“CDA”), 41 U.S.C. § 7104(b)(1), as a basis for his claim, he has failed to allege any facts sufficient to show a contract with the United States or identify the terms of the contract or the provisions that have been breached. Consequently, the CDA does not provide a basis for the exercise of the Court’s jurisdiction. In his complaint, Mr. Ealy cites an assortment of other statutes that do not confer jurisdiction on this Court because they are not money mandating. Thus 28 U.S.C. § 455, which governs judicial misconduct, is not money mandating. Uzamere v. United States, No. 10-585C, 2010 WL 3528897, at *3 (Fed.Cl. Sept. 3, 2010). Neither is the Administrative Procedure Act (APA) a money-mandating statute. Wopsock v. Natchees, 454 F.3d 1327, 1333 (Fed. Cir.2006). Furthermore, the APA may not be used to review the actions of federal judges or state entities. Pierce v. United States, 117 Fed.Cl. 798, 801 (2014); 5 U.S.C. § 702. Mr. Ealy’s causes of action based on the Ohio Constitution or the state laws of Massachusetts and Ohio are also not within this Court’s jurisdic tion. 28 U.S.C. § 1491(a)(1) (providing the Court of Federal Claims with jurisdiction to hear “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort”). Further, because the Court" }, { "docid": "15900637", "title": "", "text": "merits, however, the court proceeded to dismiss Mr. Clark’s claim on the government’s alternate ground, failure to state a claim upon which relief could be granted. Id. at 732. The court concluded that because Mr. Clark was “a member of a reserve component,” he was barred from receiving compensation for time spent taking required correspondence courses by 37 U.S.C. § 206(d). Id. That statute provides that section 206 “does not authorize compensation for work or study performed by a member of a reserve component in connection with correspondence courses of an armed force.” 37 U.S.C. § 206(d). On appeal, Mr. Clark contends that the Court of Federal Claims erred in construing 37 U.S.C. § 206 to defeat his claim. He argues that section 206(a) requires compensation for the mandatory correspondence courses he took as a member of the Alabama National Guard and that section 206(d) does not bar such compensation. The government responds that Mr. Clark is a “member of a reserve component” due to his enlistment in the National Guard of the United States and that section 206(d) prohibits payment of compensation to him for correspondence courses. In addition to responding to Mr. Clark’s appeal on the merits, the government renews its assertion that the Court of Federal Claims lacked jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). ANALYSIS I. Jurisdiction Whether the Court of Federal Claims properly exercised jurisdiction over a case is a question of law that we review de novo. Wheeler v. United States, 11 F.3d 156, 158 (Fed.Cir.1993). In this case, the court exercised jurisdiction under the Tucker Act, 28 U.S.C. § 1491, which states in pertinent part as follows: (1) The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a) (2000). Jurisdiction in the Court of Federal Claims" }, { "docid": "18232189", "title": "", "text": "Circuit had not yet expired; and (2) Brandt’s takings claim filed in the Court of Federal Claims was “for or in respect to” the claims filed in Wyoming district court because they shared “substantially the same operative facts.” Brandt, 102 Fed.Cl. at 76. Brandt timely appealed those issues to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). DiscussioN We review the Court of Federal Claims’ decision to dismiss a case for lack of subject matter jurisdiction de novo. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.Cir.2011). It is well-established that the plaintiff bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence. Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.2002). While the Tucker Act, 28 U.S.C. § 1491(a)(1), grants the Court of. Federal Claims jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort,” § 1500 divests the court of jurisdiction when a related action is pending in another court. Specifically, § 1500 provides, in relevant part, that the Court of Federal Claims “shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States....” 28 U.S.C. § 1500. As the Supreme Court recently explained, § 1500 “effects a significant jurisdictional limitation” and was designed to “save the Government from burdens of redundant litigation.” Tohono, 131 S.Ct. at 1729-30. Where § 1500 applies, the Court of Federal Claims lacks subject matter jurisdiction and must dismiss the complaint. Id. at 1727. To determine whether § 1500 applies, a court must make two inquiries: (1) whether there is an earlier-filed “suit or process” pending in another court, and, if so, (2) whether the claims asserted in the earlier-filed case are “for or in respect to” the same claim(s) asserted in the later-filed" } ]

[ { "docid": "23125920", "title": "", "text": "defendants’ argument has assumed that plaintiffs’ Rule 10b-5 claim will be dismissed leaving section 17 to stand alone. While there is authority in this Circuit for sustaining an implied right of action under section 17 alone, we need not deal directly with this issue. There is an implied right of action under section 10(b) and Rule 10b-5. Judge Friendly’s concurrence in SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir. 1968), cert. denied, sub nom. Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1968), often cited for denying implication, acknowledged that: Once it had been established . that an aggrieved buyer has a private action under § 10(b) of the 1934 Act, there seemed little practical point in denying the existence of such an action under § 17 — with the important proviso that fraud, as distinct from mere negligence, must be alleged. See Fischman v. Raytheon Mfg. Corp., 188 F.2d 783, 787 n. 2 (2 Cir. 1951); Weber v. C. M. P. Corp., 242 F.Supp. 321, 322-325 (S.D.N.Y.1965) (Wyatt, J.); Thiele v. Shields, 131 F.Supp. 416, 419 (S.D.N.Y.1955) (Kaufman, J.). 401 F.2d at 867. Since fraud as well as negligence has been alleged and the section 10(b) claim established, plaintiffs’ section 17 claim will be allowed to stand. Similarly, we need not deal with defendants’ contention that section 17 has a privity requirement. Where section 17 has been concurrently pleaded with a sufficient Rule 10b-5 claim, as here, courts forbear to rule on the sufficiency of the section 17 claim. 6 Loss, Securities Regulation 3913 (Supp. 2d ed. 1969). Ill Every defendant appealing here has contended that the statutory period within which to bring a Rule 10b — 5 action is three years. Each has further contended that this period expired before the plaintiffs’ filed their various complaints. Since the defendants stand in different factual circumstances, they must be dealt with separately. This Circuit determined in Parrent v. Midwest Rug Mills, 455 F.2d 123 (7th Cir. 1972), that Rule 10b-5 and section 17 actions arising in Illinois were subject to a three year" } ]

[ { "docid": "5406400", "title": "", "text": "test has not been met. The statute itself gives no indication, either explicitly or implicitly, whether the legislature intended to create a private cause of action. Plaintiffs argue that Congress’ intent to create a private cause of action under § 17(a) is manifested by its failure to expressly negate such a remedy when it restructured the Act in 1975. Plaintiffs rely on an observation of the Court in Herman & MacLean v. Huddleston, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983), that a judicially created private cause of action under § 10(b) had not been expressly negated by Congress in 1975, and therefore the Congress must have intended such a private remedy. This analogy to § 10(b) fails, however. As the Court noted in Herman & MacLean, id., in 1975 all but two District Courts had allowed a private remedy under § 10(b), and one had been overruled and the other was not followed by other courts in the District or Circuit. In contrast, § 17(a) did not enjoy such unanimity among the courts in 1975. Some courts had implied a private cause of action under § 17(a), while others had not. Those allowing a private remedy included: Newman v. Prior, 518 F.2d 97 (4th Cir.1975); Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287 (7th Cir.1975) cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976); MacAndrews & Forbes Co. v. American BarMag Corp., 339 F.Supp. 1401 (D.S.C.1972); Corey v. Bache & Co., 355 F.Supp. 1123 (S.D.W.Va.1973); Larson v. Tony’s Investment’s, Inc., 46 F.R.D. 612 (M.D.Ala.1969); Hecht v. Harris Upham & Co., 283 F.Supp. 417 (N.D.Cal.1968), modified, 430 F.2d 1202 (9th Cir.1970). Those denying a private remedy include: Dyer v. Eastern Trust and Banking Co., 336 F.Supp. 890 (D.Me.1971); Ferland v. Orange Groves of Florida, Inc., 377 F.Supp. 690 (M.D.Fla.1974); Trussell v. United Underwriters, Ltd., 228 F.Supp. 757 (D.Colo.1964). In addition to this basic disagreement, two courts had qualified the remedy, Dorfman v. First Boston Corp., 336 F.Supp. 1089 (E.D.Pa.1972), Greater Iowa Corp. v. McLendon, 378 F.Supp. 783 (8th Cir.1967), and the Second Circuit" }, { "docid": "10268603", "title": "", "text": "unless expressly or impliedly negatived by the statute itself, give rise to a civil remedy in tort.” Trussell v. United Underwriters Ltd., 228 F.Supp. 757, 765 (D.Colo.1964); cf. Restatement, Second, Torts, § 286. The question presented has not been determined by the Supreme Court and is apparently one of first impression in this Circuit. It is true that some courts have assumed, without deciding, that a private civil remedy exists under Section 17(a) (see, e. g., Katz v. Amos Treat & Co., 411 F.2d 1046, 1056 n. 10 (2d Cir. 1969); John Hopkins University v. Hutton, 326 F.Supp. 250 (D.Md.1971); Globus v. Law Research Service, Inc., 287 F.Supp. 188, 194 (S.D.N.Y.1968), modified, 418 F.2d 1276 (2d Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 913, 25 L.Ed.2d 93 (1970)), and other courts have expressly recognized the existence of such a remedy (see Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 n. 2 (2d Cir. 1951) (dictum); Larson v. Tony’s In vestments, Inc., 46 F.R.D. 612 (M.D.Ala. 1968); Dack v. Shanman, 227 F.Supp. 26, 28-29 (S.D.N.Y.1964)). But other courts have denied a private remedy under Section 17(a), at least where the operative facts alleged are such as to come within Section 12(2). Trussell v. United Underwriters Ltd., supra, 228 F.Supp. at 768-769; Weber v. C. M. P. Corp., 242 F.Supp. 321, 323 (S.D.N.Y.1965); cf. Greater Iowa Corp. v. McLendon, 378 F.2d 783, 790 (8th Cir. 1967). And Judge Friendly, in his concurring opinion in S. E. C. v. Texas Gulf Sulphur Co., 401 F.2d 833, 864 (2d Cir. 1968), cert. denied, Coates v. S. E. C., 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), has taken the position that Section 17 was not intended to be the basis of any private actions; that, on the other hand, there seems little practical point in denying a private action under Section 17 once it is established that a buyer has an action under Section 10(b) of the Exchange Act, “with the important proviso that fraud, as distinct from mere negligence, must be alleged”; and that to go further “would" }, { "docid": "5010755", "title": "", "text": "Hecht v. Harris, Upham & Co., 283 F.Supp. 417 (N.D.Cal.1968), modified on other grounds 430 F.2d 1202 (9th Cir.); Thiele v. Shields, 131 F.Supp. 416 (S.D.N.Y.1955); Osborne v. Mallory, 86 F.Supp. 869 (S.D.N.Y.1949). The District of Alaska has found an implied private action under Section 17(a)(3), but not Section 17(a)(1) or (a)(2), in a case that also asserts a Section 10(b) claim. Demoe v. Dean Witter & Co., 476 F.Supp. 275 [1980] Fed.Sec.L.Rep. (CCH) ¶ 97,282 (D.Alaska, Sept. 7, 1979). Others find a private remedy that is limited to some extent by Sections 11 and 12 of the 1933 Act. In re Gap Stores Securities Litigation, 457 F.Supp. 1135 (N.D.Cal.1978); In re Falstaff Brewing Corp. Antitrust Litigation, 441 F.Supp. 62 (E.D.Mo.1977); In re Equity Funding Corp. of American Securities Litigation, 416 F.Supp. 161 (C.D.Cal.1976); Wulc v. Gulf & Western Indus., Inc., 400 F.Supp. 99 (E.D.Pa.1975); B & B Investment Club v. Kleinert’s Inc., 391 F.Supp. 720 (E.D.Pa.1975); Dorfman v. First Boston Corp., 336 F.Supp. 1089 (E.D.Pa.1972). Additional cases have held that there is no implied action under Section 17(a): In re New York City Municipal Securities Litigation, supra; Marbury Management Inc. v. Kohn, 470 F.Supp. 509 (S.D.N.Y.1979); Allegaert v. Perot, 78 F.R.D. 427 (S.D.N.Y.1978); Lingerfelter v. Title Ins. Co. of Minnesota, 442 F.Supp. 981 (D.Neb.1977); Scarfarotti v. Bache & Co., 438 F.Supp. 199 (S.D.N.Y.1977); Gunter v. Hutcheson, 433 F.Supp. 42 (N.D.Ga.1977); Person v. New York Post Corp., 427 F.Supp. 1297 (E.D.N.Y.1977), aff’d without opinion 573 F.2d 1294 (2nd Cir. 1977); Lincoln National Bank v. Lampe, 414 F.Supp. 1270 (N.D.Ill.1976); Architectural League of New York v. Bartos, 404 F.Supp. 304 (S.D.N.Y.1975); Welch Foods Inc. v. Goldman, Sachs & Co., 398 F.Supp. 1393 (S.D.N.Y.1974); Reid v. Mann, 381 F.Supp. 525 (N.D.Ill.1974); Ferland v. Orange Groves of Florida, Inc., 377 F.Supp. 690 (M.D.Fla.1974); Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394 (M.D.La.1974); Dyer v. Eastern Trust & Banking Co., supra; Emmi v. First-Manufacturer’s National Bank of Lewiston and Auburn, 336 F.Supp. 629 (D.Me.1971). When Section 10(b) claims are absent form the court’s consideration, well reasoned decisions have squarely faced the Section 17(a) issue" }, { "docid": "5010754", "title": "", "text": "in denying the existence of such an action under § 17 . . . . To go further than this, as Professor Loss powerfully argues, Securities Regulation at 1785, would totally undermine the carefully framed limitations imposed on the buyer’s right to recover granted by § 12(2), of the 1933 Act. The lack of analysis in cases finding a Section 17(a) private cause of action when a Section 10(b) remedy is also available, indicates that other courts agree with Judge Friendly’s view. The district courts that have wrestled with this problem have also reached varying conclusions. Many cases that have involved Section 10(b) claims have found a private cause of action under Section 17(a) as well. Felts v. National Account Systems Assoc., 469 F.Supp. 54 (N.D.Miss.1978); DeMarco v. Security Planning Service, Inc., 462 F.Supp. 1066 (D.Ariz.1978); Wachovia Bank & Trust Co., N. A. v. National Student Marketing Corp., 461 F.Supp. 999 (D.D.C.1978); Valles Salgado v. Piedmont Capital Corp., 452 F.Supp. 853 (D.Puerto Rico 1978); Continental Assurance Co. v. American Bankshares Corp., 439 F.Supp. 804 (E.D.Wis.1977); Hecht v. Harris, Upham & Co., 283 F.Supp. 417 (N.D.Cal.1968), modified on other grounds 430 F.2d 1202 (9th Cir.); Thiele v. Shields, 131 F.Supp. 416 (S.D.N.Y.1955); Osborne v. Mallory, 86 F.Supp. 869 (S.D.N.Y.1949). The District of Alaska has found an implied private action under Section 17(a)(3), but not Section 17(a)(1) or (a)(2), in a case that also asserts a Section 10(b) claim. Demoe v. Dean Witter & Co., 476 F.Supp. 275 [1980] Fed.Sec.L.Rep. (CCH) ¶ 97,282 (D.Alaska, Sept. 7, 1979). Others find a private remedy that is limited to some extent by Sections 11 and 12 of the 1933 Act. In re Gap Stores Securities Litigation, 457 F.Supp. 1135 (N.D.Cal.1978); In re Falstaff Brewing Corp. Antitrust Litigation, 441 F.Supp. 62 (E.D.Mo.1977); In re Equity Funding Corp. of American Securities Litigation, 416 F.Supp. 161 (C.D.Cal.1976); Wulc v. Gulf & Western Indus., Inc., 400 F.Supp. 99 (E.D.Pa.1975); B & B Investment Club v. Kleinert’s Inc., 391 F.Supp. 720 (E.D.Pa.1975); Dorfman v. First Boston Corp., 336 F.Supp. 1089 (E.D.Pa.1972). Additional cases have held that there is no implied" }, { "docid": "4231908", "title": "", "text": "(2d Cir. 1970), rev’d on other grounds, 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971), another panel held at dictim (at p. 359) that “Section 17(a) of the 1933 Act provides a cause of action only for a defrauded purchaser,” and then went on to determine that plaintiff was not a purchaser. Judge Gignoux of Maine has made an excellent argument to the contrary. In Dyer v. Eastern Trust and Banking Company, 336 F.Supp. 890, 903 (D. Maine, 1971) he held: “There clearly is no explicit civil remedy provided for by Section 17(a); it is a criminal provision and, therefore, a private cause of action under that section which is brought independently of Section 12(2) can only be based upon “the general principle of tort law that violation of a provision of a criminal statute can, unless expressly or impliedly negatived by the statute itself, give rise to a civil remedy in tort.” Trussell v. United Underwriters Ltd., 228 F. Supp. 757, 765 (D.Colo.1964); cf. Restatement, Second, Torts, § 286. The question presented has not been determined by the Supreme Court and is apparently one of first impression in this Circuit. It is true that some courts have assumed, without deciding, that a private civil remedy exists under Section 17(a) (see, e. g., Katz v. Amos Treat & Co., 411 F.2d 1046, 1056 n. 10 (2d Cir. 1969); Johns Hopkins University v. Hutton, 326 F.Supp. 250 (D.Md.1971); Globus v. Law Research Service, Inc., 287 F.Supp. 188, 194 (S.D.N.Y.1968), modified, 418 F.2d 1276 (2d Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 913, 25 L.Ed.2d 93 (1970)), and other courts have expressly recognized the existence of such a remedy (see Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 n. 2 (2d Cir. 1951) (dictum); Larson v. Tony’s Investments, Inc., 46 F.R.D. 612 (M.D.Ala. 1968); Dack v. Shanman, 227 F.Supp. 26, 28-29 (S.D.N.Y.1964)). But other courts have denied a private remedy under Section 17(a), at least where the operative facts alleged are such as to come within Section 12(2). Trussell v. United Underwriters Ltd., supra, 228 F.Supp. at" }, { "docid": "1844737", "title": "", "text": "Stamps v. Manor Drug Stores, 421 U.S. 723, 762, 95 S.Ct. 1917, 1938, 44 L.Ed.2d 539 (1975) (Blackmun, J., dissenting). Perhaps, as commentators suggest, the trend is toward restricting the anti-fraud protections in federal securities law. Today, the 9th Circuit rushes to the forefront. The majority opinion brings an end to the § 17(a) implied private remedy in this circuit. I prefer to adhere to stare decisis and pay my respects to a worthy doctrine at this hour of its- premature demise. . The private right of action was first recognized in Osborne v. Mallory, 86 F.Supp. 869 (S.D.N.Y.1949). . The Civil Liabilities section of the House Committee Report neither explicitly nor implicitly says that Congress intended §§ 11 & 12 to be the exclusive private remedies under the Act. The legislative history quoted in the majority opinion cautioning against the \"imposition of 'greater responsibility’\" is taken out of context and inapposite. The paragraph discusses the burden shifting requirements of §§ 11 & 12: The provisions throwing upon the defendant in suits under sections 11 and 12 the burden of proof to exempt himself are indispensable to make the buyer's remedies under these sections practically effective. Every lawyer knows that with all the facts in the control of the defendant it is practically impossible for a buyer to prove a state of knowledge or a failure to exercise due care on the part of the defendant. Unless responsibility is to involve merely paper liability it is necessary to throw the burden of disproving re sponsibility for reprehensible acts of omission or commission on those who purport to issue statements for the public’s reliance. The responsibility imposed is no more nor less than that of a trust. It is a responsibility that no honest banker and no honest business man should seek to avoid or fear. To impose a lesser responsibility would nullify the purposes of this legislation. To impose a greater responsibility, apart from constitutional doubts, would unnecessarily restrain the conscientious administration of honest business with no compensating advantage to the public. H.R.Rep. No. 85, 73d Cong., 1st Sess. 9" }, { "docid": "5406401", "title": "", "text": "courts in 1975. Some courts had implied a private cause of action under § 17(a), while others had not. Those allowing a private remedy included: Newman v. Prior, 518 F.2d 97 (4th Cir.1975); Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287 (7th Cir.1975) cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976); MacAndrews & Forbes Co. v. American BarMag Corp., 339 F.Supp. 1401 (D.S.C.1972); Corey v. Bache & Co., 355 F.Supp. 1123 (S.D.W.Va.1973); Larson v. Tony’s Investment’s, Inc., 46 F.R.D. 612 (M.D.Ala.1969); Hecht v. Harris Upham & Co., 283 F.Supp. 417 (N.D.Cal.1968), modified, 430 F.2d 1202 (9th Cir.1970). Those denying a private remedy include: Dyer v. Eastern Trust and Banking Co., 336 F.Supp. 890 (D.Me.1971); Ferland v. Orange Groves of Florida, Inc., 377 F.Supp. 690 (M.D.Fla.1974); Trussell v. United Underwriters, Ltd., 228 F.Supp. 757 (D.Colo.1964). In addition to this basic disagreement, two courts had qualified the remedy, Dorfman v. First Boston Corp., 336 F.Supp. 1089 (E.D.Pa.1972), Greater Iowa Corp. v. McLendon, 378 F.Supp. 783 (8th Cir.1967), and the Second Circuit had declared the issue an open question. Globus v. Law Research Service, Inc., 418 F.2d 1276 (2d Cir.1969). It can scarcely be said after a review of the case law in existence in 1975 that there was a “judicial construction” of an implied private cause of action under § 17(a). Thus, the second and most important element of the modified Cort test, legislative intent, has not been met. The third element of the Cort test, whether inferring a private cause of action would be in accordance with the overall legislative scheme, has not been met. In the first instance the 1933 Act contains two express civil liability sections, §§ 11 and 12. A purchaser may bring a private action under these provisions only after adhering to certain procedural requirements which do not apply to § 17(a). Thus the implication of a private cause of action under § 17(a) would frustrate the express procedural safeguards attached to §§ 11 and 12. Plaintiffs argue that the creation of a private cause of action would not frustrate the" }, { "docid": "1242579", "title": "", "text": "See Pfeffer v. Cressaty, 223 F.Supp. 756 (S.D.N.Y.1963); Dack v. Shanman, 227 F.Supp. 26 (S.D.N.Y.1964); Value Line Fund, Inc. v. Marcus, CCH 1 Fed.Sec.Law Reporter ¶[ 91,523 (S.D.N.Y.1965); Klein v. Spear, Leeds & Kellog, 306 F.Supp. 743 (S.D.N.Y.1969); Dorfman v. First Boston Corporation, 336 F.Supp. 1089 (E.D.Pa. 1972); Lynn v. Caraway, supra. At this stage of the proceedings, however, I need not attempt to resolve this extremely vexing question. As Judge Friendly pointed out in Texas Gulf Sulphur, and Judge Kaufman reiterated in Globus v. Law Research Service, Inc., 418 F.2d 1276 (2nd Cir. 1969), there is little point in denying the existence of an action under § 17(a) once jurisdiction has been established under § 10(b) of the Securities Exchange Act. See also, Weiss v. Tenney Corporation, 47 F.R.D. 283 (S.D.N.Y.1969); Dauphin Corp. v. Redwall Corp., 201 F.Supp. 466 (D.Del. 1962). Because defendants correctly acknowledge the propriety of § 10(b) jurisdiction, the question of § 17(a) jurisdiction is purely theoretical. I also conclude that this complaint fails to state a cause of action under § 18 of the Securities Exchange Act, 15 U.S.C. § 78r. In their initial memo randum, defendants argued that this statute only applies to documents filed with a national securities exchange and is irrelevant here because Cannon is not a member of any national exchange and has made no such filings. Fischman v. Raytheon Mfg. Co., 188 F.2d 783 (2nd Cir. 1951); Bank of America National Trust & Savings Assn. v. Douglas, 70 U.S.App.D.C. 221, 105 F.2d 100 (1939); Gann v. Bernzomatic Corporation, 262 F.Supp. 301 (S.D.N.Y.1966). Plaintiff in its reply memorandum countered with the equally unimpeachable assertion that the statute also applied to “any undertaking contained in a registration statement as provided in” § 15 of the Securities Exchange Act. See Heit v. Weitzen, 402 F.2d 909 (2nd Cir. 1968), cert. denied, 395 U.S. 903, 89 S.Ct. 1740, 23 L.Ed.2d 217 (1969); Fischer v. Kletz, 266 F.Supp. 180 (S.D.N.Y.1967). It pointed out that Cannon had filed several such documents, including a statement of earnings for 1971, as special reports required by § 15(d). Defendants’" }, { "docid": "10768861", "title": "", "text": "squarely faced the issue have held that § 17 does provide a private right of action. Dack v. Shanman, 227 F.Supp. 26 (S.D.N.Y. 1964); Larson v. Tony’s Investments Inc., (M.D.Ala.1968) CCH ¶ 92,324 67-69 transfer binder; Dorfman v. First Boston Corporation, 336 F.Supp. 1089 (E.D.Pa.1972), accord Katz v. Amos Treat & Co., 411 F.2d 1046 (2d Cir. 1969); Osborne v. Mallory, 86 F.Supp. 869 (S.D.N.Y.1949); Thiele v. Shields, 131 F.Supp. 416 (S.D.N.Y.1955); Pfeifer v. Cressaty, 223 F.Supp. 756 (S.D.N.Y.1963). Of the cases referred to us by the defendants, only in Greater Iowa Corporation v. McLendon,” 378 F.2d 783 (8th Cir. 1967) was a claim under § 17 of the 1933 Act dismissed. While the previously cited cases implied a private right of action from a reading of § 17 together with § 22(a) of the 1933 Act (i. e., statutory implication) the theory in Greater Iowa was that of a “statutory tort” under § 286 of the Restatement, Second, Torts. There, the court decided that since Greater Iowa Corporation was not a purchaser of the trust shares at issue, it was not within “the class that the statute was designed to protect”. Therefore, the complaint in Greater Iowa was not dismissed because § 17 fails to provide the right to a civil action; rather it was dismissed because the transaction did not involve a purchase. See discussion, infra. Accordingly, we conclude that § 17 gives rise to a private cause of action. Next, the defendants argue that the fifth and sixth causes of action should be dismissed because there was no purchase. Section 17 of the 1933 Act deals with fraud on behalf of the seller, thereby providing a remedy for the buyer. That section states in part: “(a) It shall be unlawful for any person in the offer or sale of any securities by use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly— (1) to employ a device, scheme, or artifice to defraud, . . .” [Emphasis added] It reaches only the fraudulent conduct of" }, { "docid": "1844739", "title": "", "text": "(1933). Unlike §§11 & 12, § 17 does not shift the burden of proof. In this respect, it imposes a lesser standard of responsibility. . Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287, 1293 (7th Cir.1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976). . Johns Hopkins University v. Hutton, 488 F.2d 912 (4th Cir.1973), cert. denied, 416 U.S. 916, 94 S.Ct. 1622, 40 L.Ed.2d 118 (1974). . See, e.g., Dack v. Shanman, 227 F.Supp. 26, 28-29 (S.D.N.Y.1964); Pfeffer v. Cressaty, 223 F.Supp. 756, 757 (S.D.N.Y.1963); Thiele v. Shields, 131 F.Supp. 416, 419 (S.D.N.Y.1955); Wulc v. Gulf & Western Ind., 400 F.Supp. 99 (E.D.Pa.1975); Crowell v. Pittsburgh and Lake Erie R. Co., 373 F.Supp. 1303, 1310-11 (E.D. 1974); Dorfman v. First Boston Corp., 336 F.Supp. 1089, 1093-96 (E.D.Pa.1972); Corey v. Bache & Co., 355 F.Supp. 1123 (S.D.W.Va.1973) (by implication); Larson v. Tony’s Investments, Inc., 46 F.R.D. 612 (M.D.Ala.1969) (by implication); Hecht v. Harris, Upham & Co., 283 F.Supp. 417, 422 (N.D.Cal.1968), modified, 430 F.2d 1202 (9th Cir.1970). . As the majority opinion notes, there was a minority view. Curran does not require an \"overwhelming majority” for us to give weight to Congressional inaction. . Much of the information required to be filed by § 12 of the 1934 Act was already required by §§ 6 & 7 of the 1933 Act. Both § 10 of the 1934 Act and § 17 of the 1933 Act prohibit fraudulent conduct. “While some conduct actionable under § 11 may also be actionable under § 10(b), it is hardly a novel proposition that the 1934 Act and the 1933 Act 'prohibit some of the same conduct.’\" Herman & MacLean v. Huddleston, 459 U.S. 375, 383, 103 S.Ct. 683, 687, 74 L.Ed.2d 548 (1983) (quoting United States v. Naftalin, 441 U.S. 768, 778, 99 S.Ct. 2077, 2084, 60 L.Ed.2d 624 (1979). . Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 815 (9th Cir.1981). . Bateman Eichler, 472 U.S. at 304 n. 9, 105 S.Ct. at 2625 n. 9; Huddleston, 459 U.S. at 378 n. 2, 103 S.Ct. at" }, { "docid": "1242578", "title": "", "text": "Securities Regulation 1785), also urge that no such action lies under § 17(a) of the Securities Act, 15 U.S.C. § 77q(a) either. This question, as Judge Frankel has noted, is still an open one. Pinto v. Maremont Corp., 326 F.Supp. 165 (S.D.N.Y.1971). I am aware, however, of the compelling arguments adduced by Judge Friendly (which rely heavily on the opinions of many of the original draftsmen of the securities laws) that § 17(a) “was intended only to afford a basis for injunctive relief and, on a proper showing, for criminal liability, and was never believed to supplement the actions for damages provided by §§ 11 and 12.” S. E. C. v. Texas Gulf Sulphur Co., 401 F.2d 833, at 867 (2nd Cir. 1968). See also, Donlon Industries, Inc. v. Forte, 402 F.2d 935 (2nd Cir. 1968); Weber v. C. M. P. Corp., 242 F.Supp. 321 (S.D.N.Y.1965); Dyer v. Eastern Trust & Banking Co., 336 F.Supp. 890 (D.Me.1971). On the other hand, certain judges in this district and elsewhere have found such a private remedy implicit. See Pfeffer v. Cressaty, 223 F.Supp. 756 (S.D.N.Y.1963); Dack v. Shanman, 227 F.Supp. 26 (S.D.N.Y.1964); Value Line Fund, Inc. v. Marcus, CCH 1 Fed.Sec.Law Reporter ¶[ 91,523 (S.D.N.Y.1965); Klein v. Spear, Leeds & Kellog, 306 F.Supp. 743 (S.D.N.Y.1969); Dorfman v. First Boston Corporation, 336 F.Supp. 1089 (E.D.Pa. 1972); Lynn v. Caraway, supra. At this stage of the proceedings, however, I need not attempt to resolve this extremely vexing question. As Judge Friendly pointed out in Texas Gulf Sulphur, and Judge Kaufman reiterated in Globus v. Law Research Service, Inc., 418 F.2d 1276 (2nd Cir. 1969), there is little point in denying the existence of an action under § 17(a) once jurisdiction has been established under § 10(b) of the Securities Exchange Act. See also, Weiss v. Tenney Corporation, 47 F.R.D. 283 (S.D.N.Y.1969); Dauphin Corp. v. Redwall Corp., 201 F.Supp. 466 (D.Del. 1962). Because defendants correctly acknowledge the propriety of § 10(b) jurisdiction, the question of § 17(a) jurisdiction is purely theoretical. I also conclude that this complaint fails to state a cause of action under" }, { "docid": "23669923", "title": "", "text": "& M. Investment and Construction Corp., 185 F.Supp. 943, 946 (S.D.Cal.1960); Wonneman v. Stratford Securities Co., CCH ¶ 91,034 (1957-61 Transfer Binder) (S.D.N.Y.1961); Barias v. Bear, Stearns & Co., CCH ¶ 91,674 (1964-1966 Transfer Binder) (N.D.Ill.1966); 3 Loss, Securities Regulation, at 1719-1720. . See e. g., Lennerth v. Mendenhall, 234 F.Supp. 59 (N.D.Ohio 1964); Hill York Corp. v. American International Franchises, Inc., 448 F.2d 680 (5th Cir. 1971) ; In re Caesars Palace Securities Litigation, CCH Fed.Sec.L.Rep. ¶ 94,005 (E.D.Pa.1973). . Holding that a private cause of action exists under Section 17(a) are Dack v. Shanman, 227 F.Supp. 26 (S.D.N.Y.1964); Pfeffer v. Cressaty, 223 F.Supp. 756 (S.D.N.Y.1963); Thiele v. Shields, 131 F.Supp. 416 (S.D.N.Y.1955); Dorfman v. First Boston Corporation, 336 F.Supp. 1089 (E.D.Pa.1972); Reaching the opposite result are Hardy v. Sanson, 356 F.Supp. 1034 (N.D.Ga.1973); Dyer v. Eastern Trust & Banking Co., 336 F.Supp. 890 (D.Me.1971); Trussell v. United Underwriters, Ltd., 228 F.Supp. 757 (D.Colo.1964); Greater Iowa Corp. v. McLendon, 378 F.2d 783, 788-789 (8th Cir. 1967). Requiring privity under Section 17 (a) are, inter alia, SEC v. American Beryllium & Oil Corp., 303 F.Supp. 912, 918 (S.D.N.Y.1969); Holmberg v. Williamson, 135 F.Supp. 493 (S.D.N.Y.1955). . The plaintiff cites Kubik v. Goldfield, CCH Fed.Sec.L.Rep., ¶ 94,013 (3rd Cir. 1973) for the proposition that the Third Circuit has recognized a private cause of action under Section 17(a). While some language in that opinion reflects a tacit assumption that such a cause of action exists, there is no indication that the court considered and decided the issue and I am, therefore, disinclined to view Kubik as authoritative precedent on the point in this Circuit. . Cf. Pearlman v. Gennaro, CCH Fed.Sec.L.Rep. ¶ 94,006 (S.D.N.Y.1973) at 94,053: “At this initial stage of the proceedings, the court is not persuaded that it should dismiss the Section 17 claim at least in this instance wherein it is combined with a Section 10(b) claim in the same count.” Here, although the 10(b) and 17(a) claims appear in dif ferent counts, they rely on the same factual allegations. . Section 18, 15 U.S.C. § 78r, provides in" }, { "docid": "12536433", "title": "", "text": "damages, he may nevertheless by able to prove at trial that the actual value of the securities at the time of puchase was less than the market price that he paid for them. The district court did not purport to rely on these damage rules, in dismissing the action. We cannot say on the abbreviated record before us that plaintiff sustained no loss under either of these rules for ascertainment of damages. These matters will be before the district court upon the trial of this case. With this background, we turn to the issue of mitigation of damages, the basis on which the district court dismissed the case. B. Mitigation of damages. A defrauded buyer of securities may maintain an action for damages under § 10(b) and, presumably, § 18(a), even though he continues to hold the securities. Pfeffer v. Cressaty, 223 F.Supp. 756, 758 (S.D.N.Y.1963); see Occidental Life Insurance Co. v. Pat Ryan & Associates, supra, 496 F.2d at 1264-65; Wolf v. Frank, supra, 477 F.2d at 478; Sackett v. Beaman, 399 F.2d 884, 891 (9th Cir. 1968); Johns Hopkins University v. Hutton, 326 F.Supp. 250, 262 (D.Md.1971), aff’d in part, rev’d in part on other grounds, 488 F.2d 912 (4th Cir. 1973), cert. denied, 416 U.S. 916, 94 S.Ct. 1623, 40 L.Ed.2d 118 (1974). At common law, a defrauded purchaser of securities is under no duty to sell them prior to maintaining an action for deceit but may hold them for investment purposes if he chooses. See Hindman v. First National Bank, 112 F. 931, 935-36 (6th Cir.), cert. denied, 186 U.S. 483, 22 S.Ct. 943, 46 L.Ed. 1261 (1902); Hotaling v. A. B. Leach & Co., 247 N.Y. 84, 159 N.E. 870, 872 (1928); Stephens v. Wheeler, 193 Wis. 164, 213 N.W. 464, 468 (1927). Thus, Harris was under no duty to sell his AIC stock, for mitigation of damages or any other purpose, prior to commencing this action. Where one has bought securities for long-term investment, it would be inappropriate to apply a rule requiring him to sell them prematurely for the benefit of the defrauding" }, { "docid": "4231909", "title": "", "text": "has not been determined by the Supreme Court and is apparently one of first impression in this Circuit. It is true that some courts have assumed, without deciding, that a private civil remedy exists under Section 17(a) (see, e. g., Katz v. Amos Treat & Co., 411 F.2d 1046, 1056 n. 10 (2d Cir. 1969); Johns Hopkins University v. Hutton, 326 F.Supp. 250 (D.Md.1971); Globus v. Law Research Service, Inc., 287 F.Supp. 188, 194 (S.D.N.Y.1968), modified, 418 F.2d 1276 (2d Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 913, 25 L.Ed.2d 93 (1970)), and other courts have expressly recognized the existence of such a remedy (see Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 n. 2 (2d Cir. 1951) (dictum); Larson v. Tony’s Investments, Inc., 46 F.R.D. 612 (M.D.Ala. 1968); Dack v. Shanman, 227 F.Supp. 26, 28-29 (S.D.N.Y.1964)). But other courts have denied a private remedy under Section 17(a), at least where the operative facts alleged are such as to come within Section 12(2). Trussell v. United Underwriters Ltd., supra, 228 F.Supp. at 768-769; Weber v. C. M. P. Corp., 242 F.Supp. 321, 323 (S.D.N.Y.1965); cf. Greater Iowa Corp. v. McLendon, 378 F.2d 783, 790 (8th Cir. 1967). And Judge Friendly, in his concurring opinion in S. E. C. v. Texas Gulf Sulphur Co., 401 F.2d 833, 864 (2d Cir. 1968), cert. denied, Coates v. S. E. C., 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), has taken the position that Section 17 was not intended to be the basis of any private actions; that, on the other hand, there seems little . practical point in denying a private action under Section 17 once it is established that a buyer has an action under Section 10(b) of the Exchange Act, “with the important proviso that fraud, as distinct from mere negligence, must be alleged”; and that to go further “would totally undermine the carefully framed limitations imposed on the buyer’s right to recover granted by § 12(2) of the 1933 Act.” Id. at 867-868. The argument, based upon both legislative history and statutory construction, is persuasive" }, { "docid": "10768860", "title": "", "text": "the 1934 Act. Next, defendants argue that the fifth and sixth causes of action should be dismissed because § 17 of the 1933 Act (15 U.S.C. § 77q), upon which plaintiffs assert jurisdiction, does not give rise to a private cause of action. Issues such as this will continue to plague courts as long as the present patchwork of securities statutes is the basis for regulation of the nation’s capital markets. It is the necessity of dealing with such issues, which cannot be resolved satisfactorily, that reflects the need for prompt enactment of the proposed federal securities code. See Louis Loss & George A. Blackstone, Codification of the Federal Securities Laws, 28 The Business Lawyer 381 (Jan.1973). In several cases where the precise issue of a private right of action under § 17 was not before the court, courts have gratuitously pointed out that at the time of enactment of the 1933 Act, several of the leading commentators did not believe Congress intended § 17 to provide a private right of action. Courts which have squarely faced the issue have held that § 17 does provide a private right of action. Dack v. Shanman, 227 F.Supp. 26 (S.D.N.Y. 1964); Larson v. Tony’s Investments Inc., (M.D.Ala.1968) CCH ¶ 92,324 67-69 transfer binder; Dorfman v. First Boston Corporation, 336 F.Supp. 1089 (E.D.Pa.1972), accord Katz v. Amos Treat & Co., 411 F.2d 1046 (2d Cir. 1969); Osborne v. Mallory, 86 F.Supp. 869 (S.D.N.Y.1949); Thiele v. Shields, 131 F.Supp. 416 (S.D.N.Y.1955); Pfeifer v. Cressaty, 223 F.Supp. 756 (S.D.N.Y.1963). Of the cases referred to us by the defendants, only in Greater Iowa Corporation v. McLendon,” 378 F.2d 783 (8th Cir. 1967) was a claim under § 17 of the 1933 Act dismissed. While the previously cited cases implied a private right of action from a reading of § 17 together with § 22(a) of the 1933 Act (i. e., statutory implication) the theory in Greater Iowa was that of a “statutory tort” under § 286 of the Restatement, Second, Torts. There, the court decided that since Greater Iowa Corporation was not a purchaser of the" }, { "docid": "22647878", "title": "", "text": "Landis, Liability Sections of Securities Act, 18 Am.Acct. 330, 331 (1933); Douglas and Bates, Federal Securities Act of 1933, 43 Yale L.J. 171, 181-82 (1933); 3 Loss, Securities Regulation 1785-86 (1961). When the House Committee Report listed the sections that “define the civil liabilities imposed by the Act” it pointed only to §§ 11 and 12 and stated that “[t]o impose a greater responsibility [than that provided by §§11 and 12] * * * would unnecessarily restrain the conscientious administration of honest business with no compensating advantage to the public.\" H.Rep.No.85, 73dCong., 1st Sess. 9-10 (1933). Once it had been established, however, that an aggrieved buyer has a private action under § 10(b) of the 1934 Act, there seemed little practical point in denying the existence of such an action under § 17 — with the important proviso that fraud, as distinct from mere negligence, must be alleged. See Fischman v. Raytheon Mfg. Corp., 188 F.2d 783, 787 n. 2 (2 Cir. 1951); Weber v. C. M. P. Corp., 242 F.Supp. 321, 322-325 (S.D.N.Y.1965) (Wyatt, J.); Thiele v. Shields, 131 F.Supp. 416, 419 (S.D N.Y.1955) (Kaufman, J.); but see Dack v. Shanman, 227 F.Supp. 26 (S.D. N.Y.1964). To go further than this, as Professor Loss powerfully argues, Securities Regulation at 1785, would totally undermine the carefully framed limitations imposed on the buyer’s right to recover granted by § 12(2) of the 1933 Act. Even if, however, we were to disregard the teaching of Judge Frank in Fischman v. Raytheon Mfg. Corp., supra, 188 F.2d at 786, and follow the lead of those Circuits that seem to have discarded the scienter requirement in actions for damages under Rule 10b-5, Ellis v. Carter, 291 F.2d 270, 274 (9 Cir. 1961); Royal Air Properties, Inc. v. Smith, 312 F.2d 210, 212 (9 Cir. 1962); Kohler v. Kohler Co., 208 F.Supp. 808, 823 (E.D.Wisc.1962) (dictum), aff’d, 319 F.2d 634 (7 Cir. 1962); Stevens v. Vowell, 343 F.2d 374 (10 Cir. 1965); Myzel v. Fields, 386 F.2d 718 (8 Cir. 1967); we should not impose such expansive liability in a situation, markedly different from those" }, { "docid": "10266639", "title": "", "text": "establish that the direct seller is liable under § 12 and that a control relationship existed between the direct seller and the defendant. Winter v. D. J. & M. Investment and Construction Corp., supra, 185 F.Supp. at 946-947. The plaintiffs’ complaint does not allege that the direct seller sold securities to the plaintiffs in violation of § 12(2) nor does the complaint allege that the named defendants controlled the direct seller. Even accepting plaintiffs’ position that § 15 should be liberally construed, there is in the complaint no allegation of control for us to construe. We therefore dismiss the plaintiffs’ complaint insofar as it purports to assert claims under §§ 12(2) and 15 of the Securities Act. B. Section 17 (a) Defendants argue that plaintiffs have failed to state a claim for relief under § 17 (a) of the Securities Act because § 17 (a) does not afford a private right of action. Although some courts have implied a private right of action from § 17 (a), Dack v. Shanman, 227 F.Supp. 26 (S.D.N.Y.1964); Pfeffer v. Cressaty, 223 F.Supp. 756 (S.D.N.Y.1963); Thiele v. Shields, 131 F.Supp. 416 (S.D.N.Y. 1955); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787, n. 2 (dictum) (C.A.2, 1951), the Second Circuit has recently questioned this practice and considers the issue an open one. SEC v. Texas Gulf Sulphur, 401 F.2d 833, 864-869 (Friendly, J. concurring) (C.A.2, 1968); Donlon Industries, Inc. v. Forte, 402 F.2d 935, 936 n. 2 (C.A.2, 1968); Globus v. Law Research Service, Inc., 418 F.2d 1276 (C.A.2, 1969), cert. denied 397 U.S. 913, 90 S.Ct. 913, 25 L.Ed.2d 93 (1970); Pinto v. Maremont Corp., 326 F.Supp. 165 (S.D.N.Y.1971). The major argument against the existence of a private right of action under § 17(a) is that such an action would circumvent the express limitations placed on civil remedies by the specific civil liability sections of the Securities Act (§§ 11 and 12, 15 U.S.C. §§ 77k and 771). The specific requirements of § 12 include limitations on who may sue and be sued, the imposition on the defendants of the burden of proof" }, { "docid": "4985716", "title": "", "text": "867 (2d Cir.), cert. denied sub nom., Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1968) (Friendly, J., concurring) (citing H.Rep. No. 85, 73d Cong., 1st Sess. 9-10 (1933)). Accord, Landry, 688 F.2d at 389 and n. 35; Dyer v. Eastern Trust and Banking Co., 336 F.Supp. 890, 904-05 (D.Me.1971); Ruder, Civil Liability Under Rule 10b-5: Judicial Revision of Legislative Intent, 57 Nw.U.L.Rev. 627, 656-57 (1963). In addition, the existence of express remedies within the same statute militates against a finding of Congressional intent to imply further remedies. See, e.g., Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 14-15, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981); Transamerica, 444 U.S. at 19-21, 100 S.Ct. at 246 — 47; Redington, 442 U.S. at 571-74, 95 S.Ct. at 2486-88; Walck, 687 F.2d at 784. This is especially true here, as section 17(a) is sufficiently broad to cover virtually all activities addressed by sections 11 and 12. As mentioned earlier, however, section 17(a) does not have the internal restrictions and defenses found in sections 11 and 12. Thus, if a private right of action were to be implied under section 17(a), it would become the preferable remedy, rendering sections 11 and 12 entirely superfluous. The complex scheme which Congress wove in the express civil liability sections would be totally undermined. As the Court noted in Redington, it is “reluctant to imply a cause of action in § 17(a) that is significantly broader than the remedy that Congress chose to provide.” 442 U.S. at 574, 95 S.Ct. at 2488. Along the same lines, in Reid v. Mann, 381 F.Supp. 525 (N.D.Ill.1974) the Court noted that “[to] impose a greater responsibility [than that provided by §§ 11 and 12] ... would unnecessarily restrain the conscientious administration of honest business with no compensating advantage to the public.” 381 F.Supp. at 526 (quoting Texas Gulf Sulphur, 401 F.2d at 867 (Friendly, J., concurring)). This same reasoning led the Supreme Court to require scienter under section 10(b), which again lacks the procedural barriers written into sections 11 and 12. A" }, { "docid": "23669922", "title": "", "text": "all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly ; (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to- time. . Since Count I will not be dismissed, I need not now decide whether a plaintiff in Mr. duPont’s position has standing to seek injunctive relief based on Rule 10b-5 violations oecurring after his stock purchase when the alleged immediate effect of the violations was to maintain an inflated market price for his stock. . See e. g., Winter v. D. J. & M. Investment and Construction Corp., 185 F.Supp. 943, 946 (S.D.Cal.1960); Wonneman v. Stratford Securities Co., CCH ¶ 91,034 (1957-61 Transfer Binder) (S.D.N.Y.1961); Barias v. Bear, Stearns & Co., CCH ¶ 91,674 (1964-1966 Transfer Binder) (N.D.Ill.1966); 3 Loss, Securities Regulation, at 1719-1720. . See e. g., Lennerth v. Mendenhall, 234 F.Supp. 59 (N.D.Ohio 1964); Hill York Corp. v. American International Franchises, Inc., 448 F.2d 680 (5th Cir. 1971) ; In re Caesars Palace Securities Litigation, CCH Fed.Sec.L.Rep. ¶ 94,005 (E.D.Pa.1973). . Holding that a private cause of action exists under Section 17(a) are Dack v. Shanman, 227 F.Supp. 26 (S.D.N.Y.1964); Pfeffer v. Cressaty, 223 F.Supp. 756 (S.D.N.Y.1963); Thiele v. Shields, 131 F.Supp. 416 (S.D.N.Y.1955); Dorfman v. First Boston Corporation, 336 F.Supp. 1089 (E.D.Pa.1972); Reaching the opposite result are Hardy v. Sanson, 356 F.Supp. 1034 (N.D.Ga.1973); Dyer v. Eastern Trust & Banking Co., 336 F.Supp. 890 (D.Me.1971); Trussell v. United Underwriters, Ltd., 228 F.Supp. 757 (D.Colo.1964); Greater Iowa Corp. v. McLendon, 378 F.2d 783, 788-789 (8th Cir. 1967). Requiring privity under Section 17 (a) are, inter" }, { "docid": "1844738", "title": "", "text": "and 12 the burden of proof to exempt himself are indispensable to make the buyer's remedies under these sections practically effective. Every lawyer knows that with all the facts in the control of the defendant it is practically impossible for a buyer to prove a state of knowledge or a failure to exercise due care on the part of the defendant. Unless responsibility is to involve merely paper liability it is necessary to throw the burden of disproving re sponsibility for reprehensible acts of omission or commission on those who purport to issue statements for the public’s reliance. The responsibility imposed is no more nor less than that of a trust. It is a responsibility that no honest banker and no honest business man should seek to avoid or fear. To impose a lesser responsibility would nullify the purposes of this legislation. To impose a greater responsibility, apart from constitutional doubts, would unnecessarily restrain the conscientious administration of honest business with no compensating advantage to the public. H.R.Rep. No. 85, 73d Cong., 1st Sess. 9 (1933). Unlike §§11 & 12, § 17 does not shift the burden of proof. In this respect, it imposes a lesser standard of responsibility. . Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287, 1293 (7th Cir.1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976). . Johns Hopkins University v. Hutton, 488 F.2d 912 (4th Cir.1973), cert. denied, 416 U.S. 916, 94 S.Ct. 1622, 40 L.Ed.2d 118 (1974). . See, e.g., Dack v. Shanman, 227 F.Supp. 26, 28-29 (S.D.N.Y.1964); Pfeffer v. Cressaty, 223 F.Supp. 756, 757 (S.D.N.Y.1963); Thiele v. Shields, 131 F.Supp. 416, 419 (S.D.N.Y.1955); Wulc v. Gulf & Western Ind., 400 F.Supp. 99 (E.D.Pa.1975); Crowell v. Pittsburgh and Lake Erie R. Co., 373 F.Supp. 1303, 1310-11 (E.D. 1974); Dorfman v. First Boston Corp., 336 F.Supp. 1089, 1093-96 (E.D.Pa.1972); Corey v. Bache & Co., 355 F.Supp. 1123 (S.D.W.Va.1973) (by implication); Larson v. Tony’s Investments, Inc., 46 F.R.D. 612 (M.D.Ala.1969) (by implication); Hecht v. Harris, Upham & Co., 283 F.Supp. 417, 422 (N.D.Cal.1968), modified, 430 F.2d 1202 (9th Cir.1970). . As" } ]

[ { "docid": "22222879", "title": "", "text": "833 F.2d 208, 211-12 (9th Cir.1987); 6A J. Moore, Moore’s Federal Practice 1159.08[3] (1982). Moreover, as we have indicated, see supra note 4, these late-filed affidavits merely repeated the vague and conclusory allegations of police harassment that marked Appellant’s affidavit, and were insufficient to generate a genuine issue of material fact. Under these circumstances, their submission to the district court does not lead us to conclude that the court abused its discretion in deciding summary judgment before additional discovery was taken. Perhaps the only information in this record that might arguably have justified the postponement of summary judgment is contained in the affidavit of Appellant’s counsel, which was also submitted with the Rule 59 motion. Counsel claims that he interviewed individuals who had terminated business relationships with Appellant due to pressure from Appellees, but who refused to provide affidavits for fear of retaliation from Appellees. Although counsel suggests that he interviewed “numerous witnesses,” his affidavit gives only two examples of merchants who refused to cooperate with him. We again note that all of this information was known by Appellant’s counsel at least two months before summary judgment, and his unjustified failure to timely submit it to the district court precludes our finding on appeal that the trial court abused its discretion in not permitting further discovery based on this “new” information. See Coastal Transfer, 833 F.2d at 211-12; 6A Moore’s Federal Practice ¶ 59.08[3]. Furthermore, even if counsel had proposed an adequate justification for his withholding this information, the court’s refusal to reopen the case for discovery would still have been within its broad discretion. Given Appellant’s failure to substantiate his overall harassment claims, and specifically his inability to identify in his affidavit persons who discontinued their business with him and how his livelihood was affected, his counsel’s submission that two individuals refused to cooperate in the investigation is not sufficient, standing alone, for us to find an abuse of the trial court’s discretion. In our view, Appellant had a reasonable opportunity to demonstrate to the district court why further discovery was required, yet in his affidavit he was unable" } ]

[ { "docid": "13335322", "title": "", "text": "district court abused its discretion in denying Plaintiffs’ request for discovery before it granted the summary judgment motion. It is well-established that the plaintiff must receive “a full opportunity to conduct discovery” to be able to successfully defeat a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“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”); White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231-32 (6th Cir.1994) (“[in light of Anderson and Celotex,] a grant of summary judgment is improper if the non-movant is given an insufficient opportunity for discovery”). The district court’s decision to deny further discovery is, however, generally unreviewable unless the appellant has filed “a Rule 56(f) affidavit or a motion that gives the district court a chance to rule on the need for additional discovery.” Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir.1995). “Beyond the procedural requirement of filing an affidavit, Rule 56(f) has been interpreted as requiring that a party making such a filing indicate to the district court its need for discovery, what material facts it hopes to hncover, and why it has not previously discovered the information.” Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir.2000). The Sixth Circuit generally applies the abuse of discretion standard to the district court’s decision to deny discovery whether such request was made on a motion or by a Rule 56(f) affidavit. See Plott, 71 F.3d at 1196-97. It is not an abuse of discretion for the district court to deny the discovery request when the party “makes only general and conclusory statements [in its affidavit] regarding the need for more discovery and does" }, { "docid": "2723469", "title": "", "text": "filed his motion for an exten sion at 7:11 p.m. on the date of the non-expert discovery deadline. He made no effort to conduct discovery in the four and a half months allotted for non-expert discovery and offered no explanation for his lack of diligence. In addition, further discovery would not have affected the summary judgment ruling, and Appellees were responsive to discovery requests. Thus, it was within the district court’s discretion to decline to grant Bentkowski additional time for discovery. See, e.g., Wayne v. Vill. of Sebring, 36 F.3d 517, 530 (6th Cir.1994) (holding that district court’s denial of defendants’ motions to conduct additional discovery after the cut-off date was not an abuse of discretion when they failed to proceed with discovery during the assigned discovery period). 2. Sanction order We also find no abuse of discretion in the district court’s decision to strike Bentkowski’s first amended complaint as a sanction. The district court found that Bentkowski engaged in six types of sanctionable conduct: (1) failing to provide initial disclosures; (2) failing to prosecute the action; (3) failing to comply with the Settlement Conference Order; (4) failing to inform opposing counsel or the court of his counsel’s alleged injury; (5) failing to attempt service for almost three months; and (6) making knowingly false statements to the court in his motion to extend the non-expert discovery cut-off date. Rule 37(b)(2) permits a court to strike pleadings where a party fails to obey discovery orders. Rule 41(b) permits a court to dismiss an action with prejudice if the plaintiff fails to prosecute or to comply with a court order. The criteria for sanctions under either of these two rules are the same. Luden v. Breweur, 9 F.3d 26, 29 (7th Cir.1993). A court also has an “inherent power” to “levy sanctions in response to abusive litigation practices.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 765, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). We have held that in reviewing the imposition of sanctions for an abuse of discretion, an appellate court should consider: “(1) whether the adversary was prejudiced by the" }, { "docid": "3316263", "title": "", "text": "discretion in denying Plaintiffs’ request for discovery befpfe it granted the summary judgment motion. It is well-established that the plaintiff must receive “a full opportunity to conduct discovery” to be able to successfully defeat a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U,S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“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”); White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231-32 (6th Cir. 1994) (“[in light of Anderson and Celotex,] a grant of summary judgment is improper if the non-movant is given an insufficient opportunity for discovery”). The district court’s decision to deny further discovery is, however, generally unreviewable unless the appellant has filed “a Rule 56(f) affidavit or a motion that gives the district court a chance to rule on the need for additional discovery.” Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir.1995). “Beyond the procedural requirement of filing an affidavit, Rule 56(f) has been interpreted as requiring that a party making such a filing indicate to the district court its need for discovery, what material facts it hopes to uncover, and why it has not previously discovered the information.” Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir.2000). The Sixth Circuit generally applies the abuse of discretion standard to the district court’s decision to deny discovery whether such request was made on a motion or by a Rule 56(f) affidavit. See Plott, 71 F.3d at 1196-97. It is not an abuse of discretion for the district court to deny the discovery request when the party “makes only general and conclusory statements [in its affidavit] regarding the need for more discovery and does not show how" }, { "docid": "2723468", "title": "", "text": "on discovery and discovery sanctions for abuse of discretion. B & H Med., L.L. C. v. ABP Admin., Inc., 526 F.3d 257, 268 (6th Cir.2008); Phillips v. Cohen, 400 F.3d 388, 396 (6th Cir.2005). 1. Discovery order We find no abuse of discretion in the district court’s decision to deny Bentkowski’s motion for an extension of time. Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge’s consent.” In reviewing a district court’s denial of additional time for discovery, courts consider five factors: “(1) when the moving party learned of the issue that is the subject of discovery; (2) how the discovery would affect the ruling below; (3) the length of the discovery period; (4) whether the moving party was dilatory; and (5) whether the adverse party was responsive to ... discovery requests.” Dowling v. Cleveland Clinic Found., 593 F.3d 472, 478 (6th Cir.2010). “The overarching inquiry in these overlapping factors is whether the moving party was diligent in pursuing discovery.” Id. Here, Bentkowski filed his motion for an exten sion at 7:11 p.m. on the date of the non-expert discovery deadline. He made no effort to conduct discovery in the four and a half months allotted for non-expert discovery and offered no explanation for his lack of diligence. In addition, further discovery would not have affected the summary judgment ruling, and Appellees were responsive to discovery requests. Thus, it was within the district court’s discretion to decline to grant Bentkowski additional time for discovery. See, e.g., Wayne v. Vill. of Sebring, 36 F.3d 517, 530 (6th Cir.1994) (holding that district court’s denial of defendants’ motions to conduct additional discovery after the cut-off date was not an abuse of discretion when they failed to proceed with discovery during the assigned discovery period). 2. Sanction order We also find no abuse of discretion in the district court’s decision to strike Bentkowski’s first amended complaint as a sanction. The district court found that Bentkowski engaged in six types of sanctionable conduct: (1) failing to provide initial disclosures; (2) failing to prosecute" }, { "docid": "1323661", "title": "", "text": "other just order. Fed.R.Civ.P. 56(f). The district court denied CenTra’s motion, and we review the decision for abuse of discretion. Vance ex rel. Hammons v. United States, 90 F.3d 1145, 1149 (6th Cir.1996) (“The non-movant bears the obligation to inform the district court of his need for discovery, however. This court reviews for abuse of discretion a claim that summary judgment was prematurely entered because additional discovery was needed, and the argument is not preserved for appeal unless it is first advanced in the district court.”). In determining whether there was an abuse of discretion, “[a] number of different factors are applicable to such claims, such as (1) when the appellant learned of the issue that is the subject of the desired discovery; (2) whether the desired discovery would have changed the ruling below; (3) how long the discovery period had lasted; (4) whether the appellant was dilatory in its discovery efforts; and (5) whether the appellee was responsive to discovery requests.” Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196-97 (6th Cir.1995) (citations omitted), cert. denied, 517 U.S. 1157, 116 S.Ct. 1546, 134 L.Ed.2d 649 (1996). Because CenTra was given no opportunity to conduct the discovery that would be necessary for CenTra to oppose Gowlings’s summary judgment motion, we conclude that the district court abused its discretion in denying CenTra’s Rule 56(f) motion. Typically, when the parties have no opportunity for discovery, denying the Rule 56(f) motion and ruling on a summary judgment motion is likely to be an abuse of discretion. Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir.2004) (“It is well-established that the plaintiff must receive ‘a full opportunity to conduct discovery’ to be able to successfully defeat a motion for summary judgment.”); Vance, 90 F.3d at 1149 (“Most significant to the conclusion we reach is the fact that no discovery was conducted before the motion for summary judgment was filed and decided.”); White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231 (6th Cir.1994) (“Yet we nevertheless conclude that summary judgment should not have been awarded until the plaintiffs were allowed some opportunity" }, { "docid": "19780993", "title": "", "text": "22, 2003, and January 8, 2004, D’Amato received Cease and Desist letters from Audi. Id. at 651. D’Amato claims that on February 9, 2004, he “removed references to all approved page designs, all logos developed, and content posted having Audi Trademarks (AUDI, AUDI FOUR RINGS, and QUATTRO)” such that, as a result, “au-disport. com appeared in a noncommercial way.” D’Amato states that through the course of its existence, his “website was transformed from a noncommercial infor mational website, to a site for an Audi’s [sic] licensee, and then back to noncommercial website,” and contends that “Audi AG continues to use and supply content to audisport.com.” Appellant’s Br. at 9. Despite D’Amato’s contention, the facts show that www.audisport.com continued to have some commercial purpose. At the time the district court ruled on summary judgment, D’Amato was still offering to sell advertising space on the website. Audi, 381 F.Supp.2d at 650. Simultaneously, the website informed visitors “this page is not associated with Audi AG or Audi USA in any way.” Id. II The district court found that there were no issues of material fact and entered summary judgment in favor of Plaintiff Audi for its infringement, dilution, false designation of origin, and cyberpiracy claims. Id. at 670-71. The court denied Audi’s request for statutory damages under 15 U.S.C. § 1117(a), but granted its request for a permanent injunction and attorneys’ fees. Id. The court also denied D’Amato’s motion to reopen the discovery period through his submission of a Rule 56(f) affidavit. It found that although D’Amato was well aware of the issues with regard to which he sought discovery, he had not attempted to conduct discovery until after business hours on the last day of discovery. Id. at 653. III We review a district court’s denial of additional time for discovery for abuse of discretion. Plott v. General Motors Corp., 71 F.3d 1190, 1197 (6th Cir.1995). Factors that should be considered include when the moving party learned of the issue that is the subject of discovery, how the discovery would affect the ruling below, the length of the discovery period, whether the" }, { "docid": "2723467", "title": "", "text": "damages linked to the article. B. Discovery and Sanction Orders Bentkowski claims that the district court abused its discretion by denying his motion for an extension of time to conduct discovery and by striking his first amended complaint as a sanction. Appellees claim that we lack jurisdiction over these appeals because Bentkowski failed to designate any discovery or sanction orders in his notice of appeal. Federal Rule of Appellate Procedure 3(c)(1)(B) provides that “[t]he notice of appeal must ... designate the judgment, order, or part thereof being appealed.” Bentkowski’s notice of appeal states that he appeals from “the Court’s final judgment ... making the Opinion and Order granting Defendants’ Joint Motion for Summary Judgment ... final and appealable.” We have held that an appeal from a final judgment encompasses all prior rulings and orders where the appellant does not “designate specific determinations in its notice of appeal.” Crawford v. Roane, 53 F.3d 750, 752 (6th Cir.1995). Thus, we have jurisdiction to review the district court’s rulings on the discovery and sanction orders. We review limits on discovery and discovery sanctions for abuse of discretion. B & H Med., L.L. C. v. ABP Admin., Inc., 526 F.3d 257, 268 (6th Cir.2008); Phillips v. Cohen, 400 F.3d 388, 396 (6th Cir.2005). 1. Discovery order We find no abuse of discretion in the district court’s decision to deny Bentkowski’s motion for an extension of time. Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge’s consent.” In reviewing a district court’s denial of additional time for discovery, courts consider five factors: “(1) when the moving party learned of the issue that is the subject of discovery; (2) how the discovery would affect the ruling below; (3) the length of the discovery period; (4) whether the moving party was dilatory; and (5) whether the adverse party was responsive to ... discovery requests.” Dowling v. Cleveland Clinic Found., 593 F.3d 472, 478 (6th Cir.2010). “The overarching inquiry in these overlapping factors is whether the moving party was diligent in pursuing discovery.” Id. Here, Bentkowski" }, { "docid": "19780994", "title": "", "text": "there were no issues of material fact and entered summary judgment in favor of Plaintiff Audi for its infringement, dilution, false designation of origin, and cyberpiracy claims. Id. at 670-71. The court denied Audi’s request for statutory damages under 15 U.S.C. § 1117(a), but granted its request for a permanent injunction and attorneys’ fees. Id. The court also denied D’Amato’s motion to reopen the discovery period through his submission of a Rule 56(f) affidavit. It found that although D’Amato was well aware of the issues with regard to which he sought discovery, he had not attempted to conduct discovery until after business hours on the last day of discovery. Id. at 653. III We review a district court’s denial of additional time for discovery for abuse of discretion. Plott v. General Motors Corp., 71 F.3d 1190, 1197 (6th Cir.1995). Factors that should be considered include when the moving party learned of the issue that is the subject of discovery, how the discovery would affect the ruling below, the length of the discovery period, whether the moving party was dilatory, and whether the adverse party was responsive to prior discovery requests. Id. at 1196-97. In this case, the discovery period ended on February 28, 2005. D’Amato sought additional discovery in the form of a notice of deposition faxed to Audi after business hours on this day, which Audi did not receive until the next day. Audi, 381 F.Supp.2d at 653. The magistrate judge denied D’Amato’s motion to compel responses and extend the discovery deadline, and the district court affirmed on June 17, 2005. Id. When it denied D’Amato’s Rule 56(f) affidavit, the district court found that such an affidavit is appropriate when a party files it before discovery, but here, D’Amato filed it after discovery. Id. The court also noted that it had previously addressed and rejected this issue in June. Id. D’Amato contends that his delay was excusable because he was unaware of the issue the request pertained to — namely, an alleged abandonment by Audi of its mark “AUDI SPORT” — until'February 16, 2005. Appellant’s Br. at 43-44. Even" }, { "docid": "23651431", "title": "", "text": "JERRE S. WILLIAMS, Circuit Judge. The issue presented by this appeal is a narrow, yet difficult one given the peculiar posture and particular facts of the case as developed in the court below. Specifically: did the district court abuse its discretion in denying appellant’s request for discovery, pursuant to Fed.R.Civ.P. 56(f) affidavits, on the ground of dilatoriness, followed by the dismissal of appellant’s conclusory complaint under Section 1 of the Sherman Act, 15 U.S.C. § 1, alleging an unlawful concerted refusal to deal. Although a partial stay of discovery was in effect for all but one month of the proceedings below, we do not find this fact to signal an abuse of discretion in light of four factors: (1) the limited nature of the stay, (2) the district court’s orders concerning discovery during the litigation, (3) appellant’s repeated inability to provide both specific facts in its complaint and to frame focused discovery requests in its Rule 56(f) affidavits, and (4) appellant’s failure to seek any meaningful discovery for more than a year after filing its complaint. Proceedings Below Appellant Paul Kadair, Inc., a stereo retailer, filed this antitrust action on March 2, 1978 against a total of over forty manufacturers, manufacturers’ representatives/distributors and retailers of stereo equipment. Appellant alleged that the above defendants had engaged in a conspiracy, in violation of Section 1 of the Sherman Act, pursuant to which defendant manufacturers refused to sell their products to appellant. 15 U.S.C. § 1. After twice amending its complaint, pursuant to district court order, appellant remained unable to plead any specific facts tending to support its conclusion of conspiracy as alleged. Defendant-appellees on November 30, 1978, renewed previously-made motions and also made new motions to dismiss or for summary judgment pursuant to Fed.R. Civ.P. 56(e) against the Second Amended Complaint. These motions addressed the legal sufficiency of the complaint and alleged that appellant failed to comply with the court’s orders to plead specific facts concerning the alleged conspiracy. Some defendant-appellees submitted affidavits denying participation in the alleged conspiracy to boycott: the defendant manufacturers and distributors who were manufacturers’ representatives averred that" }, { "docid": "19780996", "title": "", "text": "if we believe D’Amato, this was twelve days prior to the discovery deadline on which D’Ama-to finally made his discovery request. More importantly, D’Amato’s counsel conceded at the magistrate hearing that D’Amato had been aware of the issue this request pertained to since December 14, 2004, a full two-and-a-half months before the discovery deadline. In Plott, we found that the district court did not abuse its discretion in denying Plaintiff Plott’s motion for additional discovery where he had learned of the pertinent issue three weeks before the close of discovery. Plott, 71 F.3d at 1197. Under this reasoning, we must find that a delay of two-and-a-half months is dilatory. D’Amato has also failed to show that granting additional discovery time would have changed the outcome of this case. D’Amato contends that Audi abandoned its rights in the AUDI SPORT logo. However, as the district court noted, any dispute over D’Amato’s use of the domain name urww.audisport.com is immaterial to the question of whether he is liable for his use of the Audi Trademarks. Audi, 381 F.Supp.2d at 649 n. 1. Thus, even if D’Am-ato had used another domain name, such as urww.damatoracing.com, he would still be liable for his commercial use of Audi’s trademarks. For the reasons above, we hold that the district court did not abuse its discretion when it rejected D’Amato’s Rule 56(f) affidavit. IV A moving party is entitled to summary judgment as a matter of law “ ‘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.’ ” Bennett v. Eastpointe, 410 F.3d 810, 817 (6th Cir.2005) (quoting Fed.R.Civ.P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[T]he 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)." }, { "docid": "23091945", "title": "", "text": "(same); Glen Eden, 740 F.2d at 428 (same), with Criss, 867 F.2d at 261 (“clearly an abuse of discretion”), with Wayne, 36 F.3d at 530 (“ ‘abuse of discretion resulting in substantial prejudice’ ” (quoting Elvis, 936 F.2d at 893)). A number of different factors are applicable to such claims, such as (1) when the appellant learned of the issue that is the subject of the desired discovery, see Woods, 954 F.2d at 391; (2) whether the desired discovery would have changed the ruling below, see Gordon v. Barnes Pumps, Inc., 999 F.2d 133, 138 (6th Cir.1993); Elvis, 936 F.2d at 894; Rhodes v. McDannel, 945 F.2d 117, 119 (6th Cir.1991), cert. denied, 502 U.S. 1032, 112 S.Ct. 872, 116 L.Ed.2d 777 (1992); Shavrnoch, 726 F.2d at 294; (3) how long the discovery period had lasted, see Woods, 954 F.2d at 391; Emmons, 874 F.2d at 359 n. 8; (4) whether the appellant was dilatory in its discovery efforts, see Frank v. D'Ambrosi, 4 F.3d 1378, 1384 (6th Cir.1993); McTighe v. Mechanics Educ. Soc’y of Am., Local 19, 772 F.2d 210, 213 (6th Cir.1985); and (5) whether the appellee was responsive to discovery requests, see Tarleton, 717 F.2d at 1534-35; Glen Eden, 740 F.2d at 428. B. Applying these various factors to this case, we conclude that the district court did not abuse its discretion in denying Plott’s motion for additional discovery and refusing to defer summary judgment under Rule 56(f). First, Plott was dilatory in his efforts to secure the information on which he bases his claim. He first learned of a local affirmative action plan at least three weeks before the end of the discovery period, but did not request any information during the remaining time. His need to know the names of those who had secured apprenticeships became apparent even earlier in the discovery process. Second, even if Plott had received the materials he wanted, this ease’s outcome would be the same. Section 713(b) of Title VII grants GM immunity for the employment decisions at the core of this litigation, and the additional information Plott sought was" }, { "docid": "3316264", "title": "", "text": "unreviewable unless the appellant has filed “a Rule 56(f) affidavit or a motion that gives the district court a chance to rule on the need for additional discovery.” Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir.1995). “Beyond the procedural requirement of filing an affidavit, Rule 56(f) has been interpreted as requiring that a party making such a filing indicate to the district court its need for discovery, what material facts it hopes to uncover, and why it has not previously discovered the information.” Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir.2000). The Sixth Circuit generally applies the abuse of discretion standard to the district court’s decision to deny discovery whether such request was made on a motion or by a Rule 56(f) affidavit. See Plott, 71 F.3d at 1196-97. It is not an abuse of discretion for the district court to deny the discovery request when the party “makes only general and conclusory statements [in its affidavit] regarding the need for more discovery and does not show how an extension of time would have allowed information related to the truth or falsity of the [document] to be discovered.” Ironside v. Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir.1999). It is also not an abuse of discretion to reject a Rule 56(f) affidavit as insufficient to support further discovery when the affidavit lacks “any details” or “specificity.” Emmons v. McLaughlin, 874 F.2d 351, 357 (6th Cir.1989). The affidavit in question here was submitted by Plaintiffs’ attorney and included the following statements in support of the discovery request: In my opinion, to respond with due diligence, discharging my responsibilities to the class, to the materials outside the pleadings which these defendants urge the Court to consider by converting their motion to one for summary judgment, would require obtaining the results of substantial written and document discovery, and a number of depositions, on the subjects of when plaintiffs’ claims accrued, and what information was released by any defendants to members of the public and when and how such releases occurred, and on a variety of" }, { "docid": "1323660", "title": "", "text": "evidence in the light most favorable to the nonmoving party, we are compelled to conclude that the district court improperly granted summary judgment in favor of Gowlings. CenTra has established genuine issues of material fact as to whether the conflict was consentable, whether CenTra was properly informed of the conflict, and whether CenTra’s actions indicated implied consent. Therefore, we REVERSE the district court’s grant of summary judgment and REMAND for further proceedings consistent with this opinion. B. CenTra’s Rule 56(f) Motion for Discovery After Gowlings filed a motion for summary judgment, CenTra asked the district court for the opportunity to conduct discovery. Under the Federal Rules of Civil Procedure, a nonmovant may request additional discovery prior to the granting of summary judgment: If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order. Fed.R.Civ.P. 56(f). The district court denied CenTra’s motion, and we review the decision for abuse of discretion. Vance ex rel. Hammons v. United States, 90 F.3d 1145, 1149 (6th Cir.1996) (“The non-movant bears the obligation to inform the district court of his need for discovery, however. This court reviews for abuse of discretion a claim that summary judgment was prematurely entered because additional discovery was needed, and the argument is not preserved for appeal unless it is first advanced in the district court.”). In determining whether there was an abuse of discretion, “[a] number of different factors are applicable to such claims, such as (1) when the appellant learned of the issue that is the subject of the desired discovery; (2) whether the desired discovery would have changed the ruling below; (3) how long the discovery period had lasted; (4) whether the appellant was dilatory in its discovery efforts; and (5) whether the appellee was responsive to discovery requests.” Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196-97 (6th Cir.1995) (citations omitted)," }, { "docid": "13335323", "title": "", "text": "is, however, generally unreviewable unless the appellant has filed “a Rule 56(f) affidavit or a motion that gives the district court a chance to rule on the need for additional discovery.” Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir.1995). “Beyond the procedural requirement of filing an affidavit, Rule 56(f) has been interpreted as requiring that a party making such a filing indicate to the district court its need for discovery, what material facts it hopes to hncover, and why it has not previously discovered the information.” Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir.2000). The Sixth Circuit generally applies the abuse of discretion standard to the district court’s decision to deny discovery whether such request was made on a motion or by a Rule 56(f) affidavit. See Plott, 71 F.3d at 1196-97. It is not an abuse of discretion for the district court to deny the discovery request when the party “makes only general and conclusory statements [in its affidavit] regarding the need for more discovery and does not show how an extension of time would have allowed information related to the truth or falsity of the [document] to be discovered.” Ironside v. Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir.1999). It is also not an abuse of discretion to reject a Rule 56(f) affidavit as insufficient to support further discovery when the affidavit lacks “any details” or “specificity.” Emmons v. McLaughlin, 874 F.2d 351, 357 (6th Cir.1989). The affidavit in question here was submitted by Plaintiffs’ attorney and included the following statements in support of the discovery request: In my opinion, to respond with due diligence, discharging my responsibilities to the class, to the materials outside the pleadings which these defendants urge the Court'to consider by converting their motion to one for summary judgment, would require obtaining the results of substantial written and document discovery, and a number of depositions, on the subjects of when plaintiffs’ claims accrued, and what information was released by any defendants to members of the public and when and how such releases occurred, and on a" }, { "docid": "1847780", "title": "", "text": "Board violated its fiduciary duty by acting in a manner contrary to ERISA. See 29 U.S.C. § 1104(a)(1)(D). This basis of relief is derivative of Thornton’s primary claim, discussed supra in Part III, that the rescission of the 1999 Benefits Increase for pre-February 1,1999 retirees violated the IRC § 411(d)(6) anti-cutback rule. As the district court stated, “[ijnsomuch as the Board of Trustee’s [sic] rescission of the 9.4 percent increase was not in violation of ERISA, the Board of Trustees cannot be said to have breached their fiduciary duty.” Thornton, 2008 WL 474416, at *4. We agree and therefore affirm the district court’s entry of summary judgment in favor of the Board on Thornton’s breach of fiduciary duty claim. y. Thornton finally claims the district court erred by denying his Rule 56(f) discovery requests. A district court may grant a continuance for discovery while a motion for summary judgment is pending if the party opposing the motion shows by affidavit that it cannot present facts essential to justify its opposition. Fed.R.Civ.P. 56(f). We review a district court’s ruling on this motion for abuse of discretion. See Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir.1995). A district court generally does not abuse its discretion in denying a Rule 56(f) discovery request if granting the desired discovery would not have affected its ruling. See id. at 1197; see also Gordon v. Barnes Pumps, Inc., 999 F.2d 133, 138 (6th Cir.1993) (finding district court did not abuse its discretion in denying discovery when the “vague allegations” underlying appellant’s discovery requests made in opposition to summary judgment would “not change the outcome of the case”). In his opposition to Defendants’ motion to dismiss, or in the alternative, for summary judgment, Thornton filed a Rule 56(f) affidavit and requested discovery of several factual matters relating to the December 2002 amendment of the Plan rescinding the 1999 Benefits Increase. He also sought information related to the other post-retirement benefit increases he received in 1997 and 1998. He argues discovery would reveal evidence demonstrating a material issue of fact that would justify denial of" }, { "docid": "23091944", "title": "", "text": "appellant has not filed either a Rule 56(f) affidavit or a motion that gives the district court a chance to rule on the need for additional discovery, this court will not normally address whether there was adequate time for discovery. See Klepper v. First Am. Bank, 916 F.2d 337, 343 (6th Cir.1990) (affirming grant of summary judgment despite insufficient discovery opportunity where appellant never filed Rule 56(f) affidavit); Emmons v. McLaughlin, 874 F.2d 351, 356-57 (6th Cir.1989) (affirming summary judgment due to lack of adequate Rule 56(f) affidavit); Shavrnoch v. Clark Oil and Refining Corp., 726 F.2d 291, 294 (6th Cir.1984) (holding that, absent Rule 56(f) affidavit, the district court was entitled to rule on a summary judgment motion at any time). Regardless of which form the appeal takes, this court has generally applied the abuse of discretion standard, although the case law reveals several different permutations of this standard. Compare, e.g., Bush v. Rauch, 38 F.3d 842, 849 (6th Cir.1994) (“abuse of discretion”); Woods, 954 F.2d at 391 (same); Emmons, 874 F.2d at 359 (same); Glen Eden, 740 F.2d at 428 (same), with Criss, 867 F.2d at 261 (“clearly an abuse of discretion”), with Wayne, 36 F.3d at 530 (“ ‘abuse of discretion resulting in substantial prejudice’ ” (quoting Elvis, 936 F.2d at 893)). A number of different factors are applicable to such claims, such as (1) when the appellant learned of the issue that is the subject of the desired discovery, see Woods, 954 F.2d at 391; (2) whether the desired discovery would have changed the ruling below, see Gordon v. Barnes Pumps, Inc., 999 F.2d 133, 138 (6th Cir.1993); Elvis, 936 F.2d at 894; Rhodes v. McDannel, 945 F.2d 117, 119 (6th Cir.1991), cert. denied, 502 U.S. 1032, 112 S.Ct. 872, 116 L.Ed.2d 777 (1992); Shavrnoch, 726 F.2d at 294; (3) how long the discovery period had lasted, see Woods, 954 F.2d at 391; Emmons, 874 F.2d at 359 n. 8; (4) whether the appellant was dilatory in its discovery efforts, see Frank v. D'Ambrosi, 4 F.3d 1378, 1384 (6th Cir.1993); McTighe v. Mechanics Educ. Soc’y of" }, { "docid": "1323671", "title": "", "text": "conclusion is consistent with the Restatement as well. “The definition [of confidential client information] includes information that becomes known by others, so long as the information does not become generally known.” Restatement § 59 cmt. b. Furthermore, according to the Restatement, it does not matter that the attorney gathered the information while working for another client because generally known information “may be employed by a lawyer who possesses it in permissibly representing other clients.” Restatement § 59 cmt. d. Instead, “[w]hether information is generally known depends on all circumstances relevant in obtaining the information. Information contained in books or records in public libraries, public-record depositories such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access. Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense.” Id. Absent information developed through discovery, Estrin’s letter appears to contain only generally known material. Gowlings presented to the district court invoices from an historical research organization establishing that Gowlings hired the group to conduct research from public sources, and Estrin’s letter seems to rely upon that research. Discovery, however, might help CenTra identify what, if any, information in the Estrin letter was derived from confidential information from the Goodman Legal Memorandum. To determine whether the district court abused its discretion in denying a Rule 56(f) motion, we look to several factors “such as (1) when the appellant learned of the issue that is the subject of the desired discovery; (2) whether the desired discovery would have changed the ruling below; (3) how long the discovery period had lasted; (4) whether the appellant was dilatory in its discovery efforts; and (5) whether the appellee was responsive to discovery requests.” Plott, 71 F.3d at 1196-97. CenTra was given no opportunity for discovery, which suggests under factors one and three that the district court abused its discretion. Furthermore, without an opportunity for discovery, factors four and five are simply not applicable. And" }, { "docid": "1323672", "title": "", "text": "Gowlings presented to the district court invoices from an historical research organization establishing that Gowlings hired the group to conduct research from public sources, and Estrin’s letter seems to rely upon that research. Discovery, however, might help CenTra identify what, if any, information in the Estrin letter was derived from confidential information from the Goodman Legal Memorandum. To determine whether the district court abused its discretion in denying a Rule 56(f) motion, we look to several factors “such as (1) when the appellant learned of the issue that is the subject of the desired discovery; (2) whether the desired discovery would have changed the ruling below; (3) how long the discovery period had lasted; (4) whether the appellant was dilatory in its discovery efforts; and (5) whether the appellee was responsive to discovery requests.” Plott, 71 F.3d at 1196-97. CenTra was given no opportunity for discovery, which suggests under factors one and three that the district court abused its discretion. Furthermore, without an opportunity for discovery, factors four and five are simply not applicable. And finally, factor two also indicates that the district court abused its discretion because CenTra sought evidence that would establish genuine issues of material fact as to its claims of breach of contract, breach of fiduciary duties, and legal malpractice. Thus, the district court’s denial of CenTra’s Rule 56(f) motion for discovery was an abuse of discretion. C. Damages Finally, Gowlings asserts in its brief that summary judgment was appropriate because CenTra cannot prove that it suffered any damages. Gowlings claims that Canada would have required CenTra to pay for an environmental assessment even if Estrin had not urged the U.S. Coast Guard also to demand an assessment. Gowlings’s argument, however, is disingenuous. Est-rin’s letter urged the U.S. Coast Guard to demand an environmental assessment because, according to Estrin, Canada’s environmental assessment was not adequate. J.A. at 43 (Estrin Letter at 9) (“In Canada, however, there are only a minimal prescribed requirements [sic] for this type of environmental examination.”). Thus, on the basis of Estrin’s own arguments, it is reasonable to assume that CenTra was forced" }, { "docid": "1847781", "title": "", "text": "district court’s ruling on this motion for abuse of discretion. See Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir.1995). A district court generally does not abuse its discretion in denying a Rule 56(f) discovery request if granting the desired discovery would not have affected its ruling. See id. at 1197; see also Gordon v. Barnes Pumps, Inc., 999 F.2d 133, 138 (6th Cir.1993) (finding district court did not abuse its discretion in denying discovery when the “vague allegations” underlying appellant’s discovery requests made in opposition to summary judgment would “not change the outcome of the case”). In his opposition to Defendants’ motion to dismiss, or in the alternative, for summary judgment, Thornton filed a Rule 56(f) affidavit and requested discovery of several factual matters relating to the December 2002 amendment of the Plan rescinding the 1999 Benefits Increase. He also sought information related to the other post-retirement benefit increases he received in 1997 and 1998. He argues discovery would reveal evidence demonstrating a material issue of fact that would justify denial of Defendants’ summary judgment motion. But as the district court correctly found: because the determination as to whether the [1999 Benefits Increase] was an “accrued benefit” is made with reference to the Plan terms in effect at the time of Thornton’s retirement, any amendments or benefit increases issued or received after his retirement are immaterial. The Defendants have proffered the terms of the Plan in effect during Thornton’s employment. Thus, discovery relating to additional documents issued after his retirement is not necessary. Thornton, 2008 WL 474416, at *4 (internal citation omitted). We agree with the district court’s conclusion that Thornton’s desired discovery would not affect the outcome of this case. Therefore, we find the district court did not abuse its discretion in denying Thornton’s Rule 56(f) motion. VI. For the foregoing reasons, we AFFIRM the district court’s decision to grant summary judgment in favor of Defendants and AFFIRM its decision to deny Thornton’s motion for discovery. . Section 4.1(B) of the Plan Document, effective October 1, 1994, states in relevant part: The amount of the Basic" }, { "docid": "19780995", "title": "", "text": "moving party was dilatory, and whether the adverse party was responsive to prior discovery requests. Id. at 1196-97. In this case, the discovery period ended on February 28, 2005. D’Amato sought additional discovery in the form of a notice of deposition faxed to Audi after business hours on this day, which Audi did not receive until the next day. Audi, 381 F.Supp.2d at 653. The magistrate judge denied D’Amato’s motion to compel responses and extend the discovery deadline, and the district court affirmed on June 17, 2005. Id. When it denied D’Amato’s Rule 56(f) affidavit, the district court found that such an affidavit is appropriate when a party files it before discovery, but here, D’Amato filed it after discovery. Id. The court also noted that it had previously addressed and rejected this issue in June. Id. D’Amato contends that his delay was excusable because he was unaware of the issue the request pertained to — namely, an alleged abandonment by Audi of its mark “AUDI SPORT” — until'February 16, 2005. Appellant’s Br. at 43-44. Even if we believe D’Amato, this was twelve days prior to the discovery deadline on which D’Ama-to finally made his discovery request. More importantly, D’Amato’s counsel conceded at the magistrate hearing that D’Amato had been aware of the issue this request pertained to since December 14, 2004, a full two-and-a-half months before the discovery deadline. In Plott, we found that the district court did not abuse its discretion in denying Plaintiff Plott’s motion for additional discovery where he had learned of the pertinent issue three weeks before the close of discovery. Plott, 71 F.3d at 1197. Under this reasoning, we must find that a delay of two-and-a-half months is dilatory. D’Amato has also failed to show that granting additional discovery time would have changed the outcome of this case. D’Amato contends that Audi abandoned its rights in the AUDI SPORT logo. However, as the district court noted, any dispute over D’Amato’s use of the domain name urww.audisport.com is immaterial to the question of whether he is liable for his use of the Audi Trademarks. Audi, 381" } ]

[ { "docid": "14908466", "title": "", "text": "document universally known as “Form U-4.” The application asked for detailed information about Jameson’s employment and personal history. It also contained various general employment provisions to which, by his signature, Jameson agreed. One of these was an arbitration clause stating: I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I may register ... and that any arbitration award rendered against me may be entered as a judgment in any court of competent jurisdiction. Through the Form U-4, Jameson also officially “registered” with the NASD. Accordingly, any “rules, constitutions [and] by-laws” of the NASD that require arbitration became binding on Jameson by his Form U-4’s arbitration provision. In practice, this meant that Jameson was bound by the NASD’s Code of Arbitration (the “NASD Code”). At all relevant times the NASD Code § 8 (“§ 8”) — entitled “Required Submission” — directed that: Any dispute, claim or controversy eligible for submission under part I of this Code between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s), or in connection with the activities of such associated person(s), shall be arbitrated under this Code, at the instance of: (1) a member against another member; (2) a member against a person associated with a member or a person associated with a member against a member; and (3) a person associated with a member against a person associated with a member. The second line of § 8 refers to “part I of this Code.” Part I, § 1 of the NASD Code (“ § 1”) — entitled “Matters Eligible for Submission” — provided for arbitration of: any dispute, claim or controversy arising out of or in connection with the business of any member of the [NASD], with the exception of disputes involving the insurance business of any member which is also an insurance company: (1) between or among members; (2) between or among members" } ]

[ { "docid": "11073895", "title": "", "text": "dispute, claim or controversy that may arise between [her] and [Warburg] ... that is required to be arbitrated under the rules, constitution, or by-laws of the [NYSE or NASD].” It is undisputed that the NYSE Rules in effect at the time of Raiola’s agreement provide, in pertinent part, that [a]ny dispute, claim or controversy between a customer or non-member and a member, allied member, member organization and/or associated person arising in connection with the business of such member, allied member, member organization and/or associated person in connection with his activities as an associated person shall be arbitrated under the Constitution and Rules of the New York Stock Exchange, Inc. as provided by any duly executed and enforceable written agreement or upon the demand of the customer or non-member. New York Stock Exchange Guide, ¶ 2600, Rule 600(a) (1995). As discussed already, the U-4 Form signed by Raiola constitutes a “duly executed and enforceable written agreement.” In addition, NYSE Rule 347 provides: Any controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party, in accordance with the arbitration procedure prescribed elsewhere in these rules. Id. at Rule 347. Raiola is therefore required to arbitrate all of her employment claims. Similarly, the NASD Code of Arbitration Procedure requires the arbitration of any dispute, claim or controversy arising out of or in connection with the business of any member of the [NASD], or arising out of the employment or termination of employment of associated person(s) with any member, with the exception of disputes involving the insurance business of any member which is also an insurance company: (a) between or among members; (b) between or among members and associated persons; (c) between or among members or associated persons and public customers, or others; and (3) between or among members [and registered clearing agencies]. National Association of Securities Dealers, Inc. Manual, § 10101 (April 1998). See also, id. at § 10201" }, { "docid": "10545613", "title": "", "text": "read and understand the items and instructions on this form;” and (3) plaintiff has acknowledged the authenticity of his signature at the end of this section. The fact that Hart may not have been provided with or reviewed the NASD and NYSE manuals does not render the arbitration agreement unenforceable. See Berger v. Cantor Fitzgerald Sec., 967 F.Supp. 91, 95-96 (S.D.N.Y.1997) (compelling arbitration although employee not provided with copy of NASD manual); Cular v. Metro. Life Ins. Co., 961 F.Supp. 550, 556 (S.D.N.Y.1997) (same). The Form U-4 signed by Hart created a valid and enforceable arbitration agreement. II. The Scope of the Agreement The arbitration provision found at paragraph 5 on page 4 of the Form U-4 provides: I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations indicated in item 10 as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgement in any court of competent jurisdiction. The organizations identified in Item 10 of the Form U-4 are the NASD and NYSE. Thus, plaintiff agreed to arbitrate disputes as required under the NASD Manual-Code of Arbitration Procedure (“NASD Code”) and the NYSE Constitution and Rules (“NYSE Rules”) as such may be amended from time to time. The relevant rules pertaining to arbitration are Rules 10101 and 10201(a) of the NASD Code and NYSE Rules 347 and 600(a). A. The NASD Code At the time Hart signed his Form U-4 and on the date he commenced this action (June 9, 1998), Rule 10101 of the NASD Code provided for arbitration of “any dispute, claim, or controversy ... arising out of the employment or termination of employment of associated person^) with any member.” Similarly, Rule 10201(a) provided in pertinent part that: [a]ny dispute, claim, or controversy ... between or among members and/or associated persons, and/or certain others ... arising out of the employment or termination of employment of such associated" }, { "docid": "11928486", "title": "", "text": "concept of a \"presumption” of arbitrability. . Plaintiffs claim that MONY Life does not manufacture securities, (Doc. No. 45, at 6); Defendants counter that it does. (Doc. No. 46, at 3-4.) .In their sur-reply to Defendants' motion to compel arbitration, Plaintiffs belatedly assert that MONY Life \"committed direct acts which have independently given rise to liability on the part of the Life Insurance defendants,” and that MONY Life was Plaintiffs' \"only statutory employer.” (Doc. No. 9, at 6.) Plaintiffs do not, however, assert independent action by MONY Life in the Complaint. . Section 10201(a) of the NASD Code provides: [A] dispute, claim, or controversy eligible for submission under the Rule 10100 Series between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), or arising out of the employment or termination of employment of such associated person(s) with such member, shall be arbitrated under this Code, at the instance of: (1) a member against another member; (2) a member against a person associated with a member or a person associated with a member against a member; and (3) a person associated with a member against a person associated with a member. . Two readings are provided here; the third, an alternate reading, is provided in note 26, infra. . The NASD Code uses the word \"instance,” which is defined by Black’s Law Dictionary as \"urgent solicitation or insistence.” Black’s Law Dictionary 800 (7th ed.1999). The Delaware Court of Chancery, interpreting the same NASD Code section, interpreted \"instance” to mean \"at the suggestion or instigation of.” Cantor Fitzgerald, L.P. v. Prebon Sec. (USA) Inc., 731 A.2d 823, 827 (Del.Ch.1999). . Some courts have read NASD Code § 10201(a) as permitting a “certain other” to join an arbitration demanded by a member and/or \"associated person.” As noted in Section III.B.2.a., supra, although a \"certain other” can never compel arbitration — or be compelled to arbitrate- — under the Code, disputes \"between or among members and/or associated persons, and/or certain others ” are nonetheless \"required”" }, { "docid": "10545614", "title": "", "text": "against me may be entered as a judgement in any court of competent jurisdiction. The organizations identified in Item 10 of the Form U-4 are the NASD and NYSE. Thus, plaintiff agreed to arbitrate disputes as required under the NASD Manual-Code of Arbitration Procedure (“NASD Code”) and the NYSE Constitution and Rules (“NYSE Rules”) as such may be amended from time to time. The relevant rules pertaining to arbitration are Rules 10101 and 10201(a) of the NASD Code and NYSE Rules 347 and 600(a). A. The NASD Code At the time Hart signed his Form U-4 and on the date he commenced this action (June 9, 1998), Rule 10101 of the NASD Code provided for arbitration of “any dispute, claim, or controversy ... arising out of the employment or termination of employment of associated person^) with any member.” Similarly, Rule 10201(a) provided in pertinent part that: [a]ny dispute, claim, or controversy ... between or among members and/or associated persons, and/or certain others ... arising out of the employment or termination of employment of such associated person(s) with such member, shall be arbitrated under this Code. On June 22, 1998, the SEC approved an amendment to this Rule providing that “claims alleging employment discrimination, including sexual harassment, in violation of a statute are not required to be arbitrated by NASD rules.” SEC Release No. 34-40109, 63 Fed.Reg. 35299, 35301, 1998 WL 339422. “This means that such claims may be filed in the appropriate court, if the employee chooses to do so and is not under an enforceable predispute obligation to arbitrate the dispute.” 63 Fed. Reg. at 35301. Plaintiff argues that he agreed to comply with the NASD Code “as amended from time to time” and therefore is not required to arbitrate his claim. However, the rule change did not become effective until January 1,1999 and the NASD Regulation expressly states that the rule change applies only “to claims filed on or after the effective date of the rule change.” 63 Fed.Reg. at 35301. In approving the amendment, the SEC noted that “this method is the one most commonly used with" }, { "docid": "23301814", "title": "", "text": "agree to arbitrate any dispute, claim or controversy that may arise between me and my firm ... that is required to be arbitrated under the rules, constitution, or by-laws of the [NASD]. App. at 5 (Form U-4, ¶ 5). The Form also contained a “compliance clause,” under which Seus agreed to: abide by, comply with, and adhere to all the provisions, conditions and covenants of the ... by-laws and rules and regulations of the [NASD] as they are and may be adopted, changed or amended from time to time ... App. at 5 (Form U-4, ¶ 2). At the time Seus executed the Form U-4, the NASD Code of Arbitration Procedure required arbitration of: any dispute, claim or controversy arising out of or in connection with the business of any member of the [NASD], with the exception of disputes involving the insurance business of any member which is also an insurance company: (1) between or among members; (2) between or among members and public customers, or others; and (3) between or among members [and] registered clearing agencies.... NASD Manual — Code of Arbitration Procedure § 1 (reprint ed. May 1982). Although the NASD Code in effect in 1982 did not explicitly state that employment disputes were subject to arbitration, the Code was amended in 1993 to do so. The current Code expressly provides for arbitration of “any dispute, claim, or controversy ... arising out of the employment or termination of employment of associated person(s) with any member.” NASD Manual — Code of Arbitration Procedure Rule 10101 (formerly § 1)(1997).) In 1996, Seus filed suit against Nuveen in the district court, alleging multiple claims of discrimination under Title VII of the Civil Rights Act of 1964 (“Title VH”), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. Based on Seus’s execution of her Form U-4, Nuveen filed a motion to dismiss and compel arbitration pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 3-4. Seus, in turn, filed a motion for leave to take the deposition of" }, { "docid": "9862183", "title": "", "text": "out of the employment or termination of employment of associated person(s) with any member, with' the exception of disputes involving the insurance business of any member which is also an insurance company: (a) between or among members; (b) between or among members and associated persons; (c) between or among members or associated persons and public customers, or others. App. at 287. Rule 10201 mandates arbitration for the following subset of the universe of disputes outlined in Rule 10101: Any dispute, claim, or controversy\" eligible for submission under [Rule 10101] between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), or arising out of the employment or termination of employment of such associated person(s) with such member, ... at the instance of: (1) a member against another member; (2) a member against a person associated with a member or a person associated with a member against a member; and (3) a person associated with a member against a person associated with a member. App. at 289. Exempted from mandatory arbitration are “claim[s] alleging employment discrimination, including a sexual harassment claim, in violation of a statute.” Rule 10201(b) (1999). Inapplicability of Wright’s “clear and unmistakable” standard The district court, relying on Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998), concluded plaintiffs’ ERISA claims were not subject to mandatory arbitration because the claims were “statutory in origin,” and “the Form U-4 and the NASD rules d[id] not explicitly require [their] arbitration.” App. at 337. Although plaintiffs urge us to adopt this same rationale, we decline to do so. In Wright, the Supreme Court held, in the context of construing a general arbitration clause contained in a collective bargaining agreement (CBA), that any union-negotiated waiver of employees’ statutory rights to a judicial forum must be “clear and unmistakable.” 119 S.Ct. at 396. In doing so, the Court was careful to differentiate CBAs from agreements entered into by individual employees. The Court noted that CBAs involve “a union’s" }, { "docid": "14986385", "title": "", "text": "MEMORANDUM AND ORDER SARIS, District Judge. I. INTRODUCTION Karen DeLuca brings this action against her employer Bear Stearns & Co., Inc. (“Bear Stearns”), and Bear Stearns employees Mark E. Murphy, Brian C. Jerome, Robert P. Lyons, Bruce Lisman, and Kathy Cavallo (collectively “defendants”), alleging gender discrimination, sexual harassment, and retaliation for testimony she gave in the age discrimination lawsuit of a former co-worker. The defendants move to dismiss or, in the alternative, compel arbitration and stay the court proceedings pending arbitration, on the grounds that the plaintiff has entered an arbitration agreement that requires DeLuca to submit her claims to an arbitrator. DeLuca contends the agreement to arbitrate is unenforceable. The U.S. Equal Employment Opportunity Commission (“amicus”) has moved for leave to file a brief amicus curiae in support of the plaintiffs position. That motion is ALLOWED. After a hearing and the filing of supplemental briefs, the defendants’ motion to compel arbitration is ALLOWED. II. BACKGROUND A. The Arbitration Agreements Karen DeLuca began working for Bear Stearns in 1985 as a retail sales assistant in its Boston office. On March 6, 1986 DeLuca completed and signed the “Uniform Application for Securities Industry Registration or Transfer” form, a standard securities industry registration form commonly referred to in the industry as a “U-4” form. The U-4 form registered DeLu-ca as an “associated person” with the New York Stock Exchange (“NYSE”) and the National Association of Securities Dealers (“NASD”). By signing the U-4 form, De-Luca agreed to arbitrate any dispute that arose between DeLuca and Bear Stearns that the rules of the NYSE and NASD required to be arbitrated. No specific mention was made of employment disputes in the U-4 document. As of 1996, the NASD’s Code of Arbitration Procedure required the arbitration of “[a]ny dispute, claim, or controversy ... in connection with the activities of such associated per son(s), or arising out of the employment or termination of employment of such associated person(s) _” NASD Manual— Code of Arbitration Procedure, § 10201 (July 1996). Following a rules change by the NASD, effective January 1, 1999, De-Luca and Bear Stearns were no longer" }, { "docid": "21046008", "title": "", "text": "Form U-4, the NASD code provided for mandatory arbitration of “[a]ny dispute, claim, or controversy ... arising out of the employment or termination of employment of associated person(s) with any member ... between or among members and associated persons.” Defendants’ Memorandum of Law, at p. 4. Further, an “associated person” is defined by the NASD by-laws as “any natural person engaged in the investment banking or securities business who is directly or indirectly ... controlled by [a] member whether or not any such person is registered or exempt from registration with the Corporation pursuant to these ByLaws.” Defendants’ Memorandum of Law, at p. 4 (emphasis added). As MetLife is a “member” of the NASD, and as Herko is a natural person engaged in the investment banking or securities business who was directly or indirectly controlled by MetLife, Defendants urge that Herko was thus an “associated person” within the meaning of the NASD by-laws, and was, upon execution of the Form U-4, obligated to arbitrate any claims arising out of her employment with MetLife. Herko does not contend that if the arbitration clause covers her claims it applies to both MetLife and Mazzella. Neither Herko nor Defendants have pointed to any precedent in direct support of their respective contentions and this court’s research has located only one case on point. In Foley v. Presbyterian Ministers’ Fund, 1992 WL 63269 (E.D.Pa.1992), the plaintiff also alleged that he was not bound by the provisions of the Form U-4 to arbitrate an employment discrimination claim as he had failed the NASD securities test and therefore never became a registered securities dealer. The court held that “[t]he undertakings contained in the Form U-4 were contingent on executing the. form, not on becoming a registered dealer.” Id. at *1. Specifically, the court noted that NASD applicants were required to make agreements to arbitrate as consideration for NASD organizations and states receiving and considering their applications. Id. In this case the court finds that, as in Foley, Herko’s execution of the Form U-4 was consideration given in exchange for consideration of her membership in NASD organizations. Additionally," }, { "docid": "22561035", "title": "", "text": "arbitrate any dispute or claim arising between him and his firm or any other person that is required to be arbitrated under the rules, constitutions, or bylaws of the NASD. Rules 10101 and 10201 of the NASD’s Code of Arbitration Procedure make employment disputes between a member firm and an “associated person,” such as Riccard, subject to arbitration by the NASD at the behest of an NASD member. See National Association of Securities Dealers, Code of Arbitration Procedure (1973). On the U-4 form, Riccard identified “Pruco Corporation” (“Pruco”) as his “firm.” Pruco is a wholly-owned, broker-dealer subsidiary of Prudential and is a registered member of the NASD. The U-4 is a contract between the registrant (Riccard) and the NASD, not between the registrant and his firm. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 n. 2, 111 S.Ct. 1647, 1651 n. 2, 114 L.Ed.2d 26 (1991). At the time Riccard signed the U-4 form Prudential, as well as Pruco, was a registered member of the NASD. And at all relevant times, the parties considered Riccard to be an employee of Prudential, not Pruco. If Prudential had still been an NASD member at the time it filed the motion to compel arbitration, we would not have this issue to resolve, because both sides agree that the NASD Code, which Riccard agreed to be bound by when he signed the U-4 form, covers employment disputes such as this one and provides for mandatory arbitration at the instance of a member. The question arises because although Prudential was an NASD member at the time the events which gave rise to the dispute occurred in 1995 and at the time Riccard filed the EEOC complaint concerning those events in April 1996, its membership in NASD ended in May 1996, which was before the EEOC issued a right to sue letter in September 1997 and before Riccard filed his lawsuit in November 1997 which resulted in Prudential’s motion to compel arbitration. The relevant part of the NASD Code, which sets forth the claims that are required to be arbitrated, provides as follows: “[a] dispute," }, { "docid": "17722710", "title": "", "text": "JOHNSON, Senior Circuit Judge: The Equitable Life Assurance Company (“Equitable”) appeals from the district court’s order denying Equitable’s motion to compel arbitration of employment discrimination claims asserted by two of its securities sales representatives. On appeal, Equitable contends that certain applications the two representatives signed with the National Association of Securities Dealers (“NASD”) mandate arbitration. For the reasons that follow, we reverse the district court. I. STATEMENT OF THE CASE Ronald Kidd and Thomas Hampton (“Ap-pellees”) are, respectively, present and former securities sales agents with Equitable and its wholly owned subsidiary, Equieo Securities (“Equieo”). Kidd joined Equitable in 1978, Hampton in 1987. In connection with their securities sales for Equitable, each completed an application, known as a “U-4” application, with the NASD. Kidd signed his first U-4 for Equitable in November 1978. This agreement contained no compulsory arbitration provision, but Kidd’s signature bound him to “abide by the Statute(s), Constitution(s), Rules, and Bylaws, as ... amended from time to time of the [NASD].” Later, U-4 forms were amended. The NASD added a provision requiring the applicant to submit to arbitration “any dispute, claim or controversy between me and my firm ... that is required to be arbitrated under the rules, constitutions or bylaws of the [NASD].” This clause appears in a January 1983 application Kidd executed for Equieo. Hampton’s U-4, completed in 1987 for both Equitable and Equieo, also contained the compulsory arbitration provision. At the time Appellees signed these U-4s, § 8 of the NASD Arbitration Code read, in relevant part: Any dispute, claim or controversy eligible for submission under Part I of this Code between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), shall be arbitrated under this Code, at the instance of: (1) a member against another member; (2) a member against a person associated with a member or a person associated with a member against a member; and.... Code of Arbitration Procedure, NASD Manual (CCH) ¶3708 (hereinafter “pre-amendment Code”). Pursuant to § 1 of the pre-" }, { "docid": "23301851", "title": "", "text": "the referenced legislative history of § 118, see fn. 1, p. 16, supra, we understand \"knowingly and voluntarily” to invoke ordinary,, well established principles of contract law rather than the heightened standard for which Seus contends. . Section 8 of the pre-Amendment NASD Code provided: Any dispute, claim or controversy eligible for submission under Part I of this Code between or among- members and/or associated persons, and/or certain others, arising in connection with the business of such member(s), or in connection with the activities of such associated . person(s), shall be arbitrated under this Code, at the instance of: (1) a member against another member; (2) a member against a person associated with a member or a person associated with a member against a member; and (3) a person associated with a member against a person associated with a member. NASD Manual — Code of Arbitration Procedure § 1 (reprint ed. May 1982). . As noted above, the Form U-4 compliance clause bound Seus to \"abide by, comply with, and adhere to all the provisions, conditions and covenants of the ... by-laws and rules and regulations as they may be adopted, changed or amended from time to time....” App. at 5 (Form U-4, ¶ 2). . On December 17, 1997, after the district court decision in this case, the NASD submitted to the SEC the following proposed change to Rule 10201 (Required Submission) (formerly § 8) of the Code of Arbitration Procedure: (b) A claim alleging employment discrimination or sexual harassment in violation of a statute is not required to be arbitrated. Such a claim may be arbitrated only if the parties have agreed to arbitrate it, either before or after the dispute arose. 62 Fed.Reg. 66164, 66164 (Dec. 17, 1997). Seus views this proposed rule change as an explicit admission by NASD that absent employee free choice, neither it, nor the court, should rely on the Form U-4 to compel arbitration of all employment claims. Since the NASD has decided to give its registrants a choice between signing an agreement to arbitrate and reserving the right to file an" }, { "docid": "11928471", "title": "", "text": "“associated person” can compel arbitration against an “associated person.” Looking to the final phrase of the main paragraph, only members or “associated persons” may “insist” on arbitration under the Code. Notably missing from subsections (1), (2), and (3) is the term “certain others,” which appears only at the beginning of the main paragraph. As the Second Circuit has held, “ ‘certain others’ are not authorized to compel arbitration under the NASD Code.” Bums, 202 F.3d at 622. Therefore, “certain others” cannot compel arbitration under the Code. b. A “certain other” can compel arbitration against an “associated person” under Form U-k- NASD Code § 10201(a) is relevant not just for listing which parties may compel arbitration, but also for stating the instances when a dispute “shall be arbitrated.” According to § 10201(a), a “dispute ... between ... associated persons [and] certain others ... shall be arbitrated under this Code.” The mandatory “shall” means that disputes between “associated persons” and “certain others” are required to be arbitrated under the Code. In their Form U-4s, Plaintiffs agreed to arbitrate any dispute “that may arise between me and ... any other person, that is required to be arbitrated under the rules” of the NASD. The Court is confronted with whether the term “person” in the Form U-4 means only natural persons, as it does in the NASD Code, or includes entities, as it does in the Securities Exchange Act, 15 U.S.C. § 78e(a)(9); see S.E.C. v. J.W. Barclay & Co., 442 F.3d 834, 842 (3d Cir.2006). As noted above, Form U-4 is used by numerous SROs, not just the NASD, and is standard in the industry. Moreover, the form is otherwise expansive. Therefore, the definition of “person” in the Securities Exchange Act is controlling for the meaning of “person” in the Form U-4. The definition of “person” includes non-natural entities. Form U-4 obligates signatories to arbitrate any dispute between themselves and any other person (or entity) that is required to be arbitrated under the NASD Code. Disputes between “associated persons” and “certain others” are required to be arbitrated under the Code. Therefore, a “certain" }, { "docid": "9862182", "title": "", "text": "Co. of America, 72 F.3d 793, 796 (10th Cir.1995). The Form U-4-s and the NASD Rules As previously noted, the Form U-4s signed by plaintiffs provided: I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the [NASD] as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgement in any court of competent jurisdiction. App. at 100 (item 5). Among the NASD “rules, constitutions, or by-laws” incorporated by the Form U-4s was the NASD Code of Arbitration Procedure, two rules of which are relevant to this dispute. Rule 10101 “defines the general universe of issues that may be arbitrated,” Armijo, 72 F.3d at 798 , and provides, in pertinent part, for the arbitration of: any dispute, claim, or controversy arising out of or in connection with the business of any member of the Association, or arising out of the employment or termination of employment of associated person(s) with any member, with' the exception of disputes involving the insurance business of any member which is also an insurance company: (a) between or among members; (b) between or among members and associated persons; (c) between or among members or associated persons and public customers, or others. App. at 287. Rule 10201 mandates arbitration for the following subset of the universe of disputes outlined in Rule 10101: Any dispute, claim, or controversy\" eligible for submission under [Rule 10101] between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), or arising out of the employment or termination of employment of such associated person(s) with such member, ... at the instance of: (1) a member against another member; (2) a member against a person associated with a member or a person associated with a member against a member; and (3) a person associated with a member against" }, { "docid": "22561036", "title": "", "text": "Riccard to be an employee of Prudential, not Pruco. If Prudential had still been an NASD member at the time it filed the motion to compel arbitration, we would not have this issue to resolve, because both sides agree that the NASD Code, which Riccard agreed to be bound by when he signed the U-4 form, covers employment disputes such as this one and provides for mandatory arbitration at the instance of a member. The question arises because although Prudential was an NASD member at the time the events which gave rise to the dispute occurred in 1995 and at the time Riccard filed the EEOC complaint concerning those events in April 1996, its membership in NASD ended in May 1996, which was before the EEOC issued a right to sue letter in September 1997 and before Riccard filed his lawsuit in November 1997 which resulted in Prudential’s motion to compel arbitration. The relevant part of the NASD Code, which sets forth the claims that are required to be arbitrated, provides as follows: “[a] dispute, claim or controversy eligible for submission under [Rule 10101] between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), or arising out of the employment or termination of employment of such associated person(s) with such member, shall be arbitrated under this Code, at the instance of: (1) a member against another member; (2) a member against a person associated with a member or a person associated with a member against a member; and (3) a person associated with a member against a person associated with a member.” National Association of Securities Dealers, Code of Arbitration Procedure, Rule 10201(a) (1973) (emphases added). Under this rule, an employment dispute, claim, or controversy between a member and an associated person is subject to mandatory arbitration at the instance of a member. Riccard’s dispute with Prudential (it was not with Pruco) was subject to mandatory arbitration at the instance of Prudential if Riccard is considered an “associated person” (as provided" }, { "docid": "6267199", "title": "", "text": "Securities Industry Registration (“U-4 Form”) and calls for arbitration of any dispute, claim or controversy between Wood and Prudential “to be arbitrated under the rules ... or by-laws of [the NASD].” A-246. It requires arbitration under the NASD Code of any claim “arising out of the employment or termination of employment of such associated person(s) with such member....” A-254, NASD Manual (CCH) S10201. Wood’s claim of defamation is based on Prudential’s forwarding of Wood’s termination letter to the New Jersey Department of Insurance. State Complaint ¶¶ 6, 11, A-17, 19. In that letter, Prudential referenced Wood’s alleged violations of company rules. A-23. Since the alleged defamation was a description of Wood’s activities while employed at Prudential and was contained in Wood’s termination letter, we hold that the claim of defamation arose out of his employment and its termination. Thus, Wood’s defamation claim is arbitrable. Wood’s claim of intentional infliction of emotional distress also arises out of Wood’s employment and its termination. He alleges that Prudential’s actions “were outrageous, by reason of [its] use of false and defamatory allegations of wrongdoing as a pretext for the termination of the plaintiff....” State Complaint ¶ 14, A-20. Again, the claim centers on Wood’s termination and is, thus, covered by the arbitration agreement. Wood also contends that the arbitration agreement does not apply to his state law discrimination claim because of an amendment to the NASD rules. We disagree. The amendment, effective January 1, 1999, exempts from mandatory arbitration “elaim[s] alleging employment discrimination ... in violation of a statute.” Rule 10201(b) of NASD Code of Arbitration Procedure, A-525. Because the amendment was not effective until January 1, 1999, it did not affect the arbitration agreement between these two parties which requires Wood to comply with arbitration as defined by the NASD Code at the time he filed suit in 1998. See Seus v. John Nuveen & Co.,- Inc., 146 F.3d 175, 187 (3rd Cir.1998) (“[The] Form U-4 compliance clause obligates a registrant to comply with the NASD arbitration code as it existed at the time she filed suit.”). We hold, thus, that the arbitration" }, { "docid": "11928443", "title": "", "text": "to note the unique situation of Form U-4 in the universe of arbitration agreements. In the typical situation, two parties enter into an agreement to arbitrate with each other any dispute that may arise. With the Form U-4, on the other hand, an employee enters into an agreement with the NASD to arbitrate with the employee’s employer (the NASD member firm) any disputes that may arise. The employer, in turn, is obligated by virtue of its membership in the NASD to arbitrate disputes with its employees. The employee and employer do not execute their own arbitration agreement. 2. NASD provisions Form U-4 explicitly refers to the NASD’s rules, constitutions, or bylaws, as they may be amended. Relevant here are the NASD’s Bylaws and Manual, available at http://nasd.complinet.com/nasd/display/ index.html. Within the NASD Manual is the NASD Code of Arbitration Procedures (NASD Code), § 10000 et seq., which governs the procedures for arbitration. Specifically, NASD Code § 10101 defines the universe of “matters eligible for submission” for arbitration: [A]ny dispute, claim, or controversy arising out of or in connection with the business of any member of the Association, or arising out of the employment or termination of employment of associated person(s) with any member ...: (a) between or among members; (b) between or among members and associated persons; [or] (c) between or among members or associated persons and public customers, or others.... NASD Code § 10101. Section 10201(a), in turn, limits the universe of eligible matters to those “required [for] submission”: [A] dispute, claim, or controversy eligible for submission under the Rule 10100 Series between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), or arising out of the employment or termination of employment of such associated person(s) with such member, shall be arbitrated under this Code, at the instance of: (1) a member against another member; (2) a member against a person associated with a member or a person associated with a member against a member; and (3) a person associated with" }, { "docid": "11073896", "title": "", "text": "of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party, in accordance with the arbitration procedure prescribed elsewhere in these rules. Id. at Rule 347. Raiola is therefore required to arbitrate all of her employment claims. Similarly, the NASD Code of Arbitration Procedure requires the arbitration of any dispute, claim or controversy arising out of or in connection with the business of any member of the [NASD], or arising out of the employment or termination of employment of associated person(s) with any member, with the exception of disputes involving the insurance business of any member which is also an insurance company: (a) between or among members; (b) between or among members and associated persons; (c) between or among members or associated persons and public customers, or others; and (3) between or among members [and registered clearing agencies]. National Association of Securities Dealers, Inc. Manual, § 10101 (April 1998). See also, id. at § 10201 (making arbitration of the disputes described in § 10101 mandatory in these circumstances). In short, under the rules of either organization, Raiola’s assent to the terms of the U-4 Form bound her to arbitrate any disputes arising with Warburg. Resolving “any doubts concerning the scope of arbi-trable issues ... in favor of arbitration,” Moses H. Cone Memorial Hosp., 460 U.S. at 24-25, 103 S.Ct. 927, I find that Raiola’s claims fall within the scope of her agreement in the U-4 Form to arbitrate her disputes with Warburg. See Thomas James, 102 F.3d at 65-66 (finding employment claims to be within scope of U-4 Form agreement signed by plaintiff); Desiderio, 2 F.Supp.2d at 520 (Title VII and other employment claims); Schuetz, 1997 WL 452392, at *3 (same) (citing cases). 3. Arbitrability of Title VII Claims Subsequent to signing her U-4 Form and filing her lawsuit, both the NYSE and the NASD modified their rules to preclude mandatory arbitration of discrimination claims. Lingering disputes within the spirited public policy debate about requiring discrimination claims to be heard" }, { "docid": "11928472", "title": "", "text": "arbitrate any dispute “that may arise between me and ... any other person, that is required to be arbitrated under the rules” of the NASD. The Court is confronted with whether the term “person” in the Form U-4 means only natural persons, as it does in the NASD Code, or includes entities, as it does in the Securities Exchange Act, 15 U.S.C. § 78e(a)(9); see S.E.C. v. J.W. Barclay & Co., 442 F.3d 834, 842 (3d Cir.2006). As noted above, Form U-4 is used by numerous SROs, not just the NASD, and is standard in the industry. Moreover, the form is otherwise expansive. Therefore, the definition of “person” in the Securities Exchange Act is controlling for the meaning of “person” in the Form U-4. The definition of “person” includes non-natural entities. Form U-4 obligates signatories to arbitrate any dispute between themselves and any other person (or entity) that is required to be arbitrated under the NASD Code. Disputes between “associated persons” and “certain others” are required to be arbitrated under the Code. Therefore, a “certain other” can compel arbitration under the Form U-4. 3. Application a. MONY Life (a “certain other”) cannot compel arbitration under the NASD Code. According to the terms of § 10201(a) and its interpretation here, only “associated persons” and NASD members can compel arbitration under the Code, and then only in certain situations. MONY Life is neither a member nor an “associated person.” (It is a “certain other.”) Therefore, MONY Life cannot compel arbitration under the Code. b. MONY Life (a “certain other”) can compel arbitration against the Mar-cianos (“associated persons”) under Form U-L Plaintiffs are “associated persons” under the NASD Code. MONY Life is a “certain other” under the NASD Code. Disputes between “associated persons” and “certain others” are required to be arbitrated under the NASD Code. In the Form U-4, Plaintiffs agreed to arbitrate any dispute between themselves and others that is required to be arbitrated under the NASD Code. Therefore, Plaintiffs, upon executing the Form U-4, agreed to arbitrate their dispute against MONY Life. On the basis of this agreement, MONY Life can" }, { "docid": "23301845", "title": "", "text": "category within § l’s subsections. And, on the other hand, § 8 clearly contemplates that Jameson, as an “associated person,” will arbitrate his disputes with an NASD-member employer. If we were to read “others” to exclude Jameson, § 1 would take what § 8 gives, rendering § 8 utterly superfluous in this respect. Therefore, to avoid construing one provision as negating the other, “we must give Section 1 an interpretation at least as broad as that clearly called for in Section 8.” 102 F.3d at 65. Second, interpreting “others” to include employees with employment-related disputes gives meaning to the language of the Form U-4, which clearly indicates that the applicant agrees that at least some disputes between her and her firm would be arbitrable. See id. at 65; Armijo, 72 F.3d at 799. Third, the NASD itself indicated as early as 1987 that the pre-Amendment Code applied to employment-related disputes between employees and member firms. See Jameson, 102 F.3d at 65; Armijo, 72 F.3d at 799. Based on these considerations, “we cannot say “with positive assurance’ that ‘others’ does not include an employee with an employment-related dispute against a member firm.” Jameson, 102 F.3d at 65. It is at least ambiguous whether that term encompasses employees with employment-related disputes. “However, to acknowledge the ambiguity is to resolve the issue, because all ambiguities must be resolved in favor of arbitrability.” Armijo, 72 F.3d at 798. Accordingly, we find that the district court correctly concluded that the pre amendment NASD Code provided for arbitration of employment disputes. B. The Compliance Clause and the Amended NASD Code On October 1, 1993, the NASD amended its Code of Arbitration Procedure to provide for the arbitration of “any dispute, claim or controversy ... arising' out of the employment or termination of employment of associated person(s) with any member ...” NASD Arbitration Code, Rule 10101 (formerly § 1). Nuveen argues that, regardless of whether we conclude that the pre-amendment NASD Code requires arbitration of Seus’s employment dispute, we should affirm the district court’s order compelling arbitration based on the compliance clause in her Form U-4 and" }, { "docid": "10403863", "title": "", "text": "MEMORANDUM AND ORDER GRANTING DEFENDANTS’ MOTION TO COMPEL ARBITRATION GADOLA, District Judge. Plaintiff brought this ADEA and Title VII suit, alleging that defendants had discrimi-natorily fired her because of her age and gender. Defendants now bring the present motion to compel arbitration and/or to dismiss. Pursuant to Local Rule 7.1(e)(2), the court has dispensed with oral argument and will decide the present motion based on the written submissions of the parties. For the reasons stated below, this court will grant the defendants’ motion to compel arbitration. I. Factual Background Plaintiff began working for the defendants as an insurance salesperson on May 17,1976. In 1984, plaintiff signed a Uniform Application for Securities Industry Registration (hereinafter “U-4 form”), which states: THE FOLLOWING SHOULD BE READ VERY CAREFULLY BY THE APPLICANT 5. I agree to arbitrate any dispute, claim, or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register.... Plaintiff registered with the National Association of Securities Dealers (hereinafter “NASD”). Part I of the NASD Code of Arbitration Procedure states that the code was created “for the arbitration of any dispute, claim, or controversy arising out of or in connection with the business of any member of the Association.... ” This code mandates arbitration of: any dispute, claim, or controversy eligible for submission under Part I of this Code between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), ... at the instance of: (1) a member against another member; (2) a member against a person associated with a member or a person associated with a member against a member; and, (3) a person associated with a member against a person associated with a member. Plaintiff asserts that she was informed that she had to sign the U-4 form to keep her employment and that she does not remember reading the previously quoted language from the U-4 form." } ]

[ { "docid": "22773332", "title": "", "text": "rate.” See also Voter Information Project, Inc. v. City of Baton Rouge, 612 F.2d 208, 210 (5th Cir. 1980); Madison v. Purdy, 410 F.2d 99, 100-01 (5th Cir. 1969); International Erectors, Inc. v. Wilhoit Steel Erectors & Rental Service, 400 F.2d 465, 471 (5th Cir. 1968) . Within the strong framework of policy considerations that militate against granting motions to dismiss for failure to state a claim, we have developed two primary principles that guide our review of a complaint so dismissed. First, we must accept as true all well pleaded facts in the complaint, and the complaint is to be liberally construed in favor of the plaintiff. Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981); Voter Information Project, Inc., supra, 612 F.2d at 210; Madison, supra, 410 F.2d at 100. Second, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 — 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Dike v. School Board of Orange County, Florida, 650 F.2d 783, 787 (5th Cir. 1981); Miller, supra, 636 F.2d at 992; Fadjo v. Coon, 633 F.2d 1172, 1174 (5th Cir. 1981). These two principles are, however, subject to the following limitations. Although we must accept as true the well-pleaded allegations of a complaint dismissed for failure to state a claim, we do not accept as true conclusionary allegations in the complaint. Associated Builders, Inc. v. Alabama Power Company, 505 F.2d 97, 100 (5th Cir. 1974). Further, a complaint that shows relief to be barred by an affirmative defense, such as the statute of limitations, may be dismissed for failure to state a cause of action. United Transportation Union v. Florida East Coast Railway Company, 586 F.2d 520, 527 (5th Cir. 1978); Mann v. Adams Realty Company, Inc., 556 F.2d 288, 293 (5th Cir. 1977); Joe E. Freund, Inc. v. Insurance Company of North America, 370 F.2d 924, 924 (5th Cir. 1967); J." } ]

[ { "docid": "22789762", "title": "", "text": "of Rule 12(b)(6) dismissal, and the defendant’s attaching such documents to the motion to dismiss will not require conversion of the motion into a motion for summary judgment. Venture Assoc. Carp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993) (“Documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to her claim.”). Nonetheless, for the purposes of the motion to dismiss, the complaint must be construed in a light most favorable to the plaintiff and the factual allegations taken as true. See SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.), reh’g denied, 840 F.2d 25, cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988). The Eleventh Circuit has recently written: [T]he Supreme Court has stated that the “accepted rule” for appraising the sufficiency of a complaint is “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Tiftarea Shopper, Inc. v. Georgia Shopper, Inc., 786 F.2d 1115, 1117-18 (11th Cir.1986) (quoting Conley). Id. A complaint may not be dismissed because the plaintiffs claims do not support the legal theory he relies upon since the court must determine if the allegations provide for relief on any possible theory. Robertson v. Johnston, 376 F.2d 43 (5th Cir.1967). We hasten to add that this motion is viewed with disfavor and rarely granted. See e.g., Madison v. Purdy, 410 F.2d 99, 100 (5th Cir.1969); International Erectors, Inc. v. Wilhoit Steel Erectors & Rental Service, 400 F.2d 465, 471 (5th Cir.1968) (“Dismissal of a claim on the basis of barebone pleadings is a precarious disposition with a high mortality rate.”). The pleadings must show, in short, that the Plaintiffs have no claim before the 12(b)(6) motion may be granted. B. Motions for Summary Judgment The" }, { "docid": "19941895", "title": "", "text": "of the claim must be resolved in favor of the plaintiff. Id.; Jones v. Alcoa, Inc., 339 F.3d 359, 362 (5th Cir.2003). Nevertheless conclusory allegations and unwarranted factual deductions will not suffice to avoid a motion to dismiss. United States ex rel. Willard v. Humana Health Plan of Texas, Inc., 336 F.3d 375, 379 (5th Cir.2003). Under Fed.R.Civ.P. 10(c), “a copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” Thus documents attached to a complaint are viewed as part of the plain tiffs pleadings. General Electric Capital Corp. v. Posey, 415 F.3d 391, 398 n. 8 (5th Cir.2005), citing inter alia 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1327, at 766 (1990) (“[A] plaintiff may plead himself out of court by attaching documents to the complaint that indicate that he or she is not entitled to judgment.”). Furthermore any documents attached by a defendant to its motion to dismiss that are referred to in the plaintiffs complaint are considered part of the pleadings. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.2004). Traditionally, dismissal was not proper “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Lowrey, 117 F.3d at 247, citing Conley v. Gibson, 355 U.S. 41, 45-16, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In a recent antitrust case, however, the Supreme Court appears to have modified the Conley rule by inserting a new “plausibility standard,” Bell Atlantic Corporation v. Twombly, — U.S. —, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (7-2), even though the Supreme Court claimed it had not (id. at 1973 n. 14). In Bell Atlantic, the Supreme Court pronounced that the Conley “ ‘no set of facts’ language” test “has earned its retirement” and “is best forgotten.” Bell Atlantic, 127 S.Ct. at 1969, opined that “a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions and a formulaic recitation of" }, { "docid": "16975250", "title": "", "text": "is limited. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support its claims. Id. The district court should consider all allegations in favor of the plaintiff and accept as true all well-pleaded facts in the complaint. Lawal v. British Airways, PLC, 812 F.Supp. 713, 716 (S.D.Tex.1992). Dismissal is not appropriate “unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle him to relief”. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Nevertheless, conclusory allegations or legal conclusions masquerading as factual conclusions do not defeat a motion to dismiss. Fernandez-Montes v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir.1993). Courts need only accept well-pleaded factual allegations as true. Shushany v. Allwaste, Inc., 992 F.2d 517, 520, 523 (5th Cir.1993); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994)(courts should “not accept as true conclusory allegations or unwarranted deductions of fact.”). In the instant action, as discussed above and below, Plaintiff must also satisfy the pleading requirements of Rule 9(b)(fraud must be pled with particularity) and for scien-ter under the PSLRA and Rule 10b-5. . Central Bank v. First Interstate Bank, 511 U.S. at 191, 114 S.Ct. 1439. . Plaintiff’s consolidated complaint asserts claims against various subsidiaries and affiliates of J.P. Morgan Chase & Co., which Plaintiffs refer to collectively as “JPMorgan Chase.” J.P. Morgan Chase & Co. objects that these corporations are separate entities. J.P. Morgan Chase & Co. was formed on December 31, 2000 by the merger of J.P. Morgan & Co. Incorporated and The Chase Manhattan Corporation. Although the consolidated complaint names Lehman Brothers Holdings Inc. as a defendant, Lehman Brothers asserts, and points to paragraph 108 in the complaint to show that Lead Plaintiff concedes that the banking and advisory services at issue are provided only by its subsidiary, Lehman Brothers Inc. Similarly in its memorandum supporting its motion to" }, { "docid": "22077590", "title": "", "text": "facts stated in appellant’s complaint and all reasonable inferences therefrom are taken as true.”). A motion to dismiss is granted only “when the mov-ant demonstrates ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Jackson, 309 F.3d at 1335 (quoting Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir.1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957))). “Although a plaintiff is not held to a very high standard in a motion to dismiss for failure to state a claim, some minimal pleading standard does exist.” Wagner v. Daewoo Heavy Industries Am. Corp., 289 F.3d 1268, 1270 (11th Cir.), rev’d on other grounds, 314 F.3d 541 (11th Cir.2002) (en banc). “[Cjonclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.2002) (internal quotation marks and cita tion omitted); see also Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.1974) (“Conclusory allegations and unwarranted deductions of fact are not admitted as true.... ”) ; Robinson v. Jewish Ctr. Towers, Inc., 993 F.Supp. 1475, 1476 (M.D.Fla.1998) (“[T]he court will not accept, without more, conclusory allegations or legal conclusions masquerading as factual conclusions.”); Cummings v. Palm Beach County, 642 F.Supp. 248, 249-50 (S.D.Fla.1986) (finding vague and conclusory complaint failed to state a factual basis for claims of race and age discrimination required to give defendant notice necessary to prepare defense). To survive a motion to dismiss, plaintiffs must do more than merely state legal conclusions; they are required to allege some specific factual bases for those conclusions or face dismissal of their claims. A. Plaintiffs’ Substantive Federal and State RICO Claims The plaintiffs raise two basic questions on appeal: first, whether the district court erred in concluding that the plaintiffs failed to allege a pattern of racketeering activity by failing to establish “continuity”; and second, whether the district court likewise erred in finding that the plaintiffs failed to allege" }, { "docid": "20682765", "title": "", "text": "In particular, she alleges that Officer Rodriguez arrested her without probable cause and used excessive force in violation of Plaintiffs Fourth Amendment rights. In addition, Plaintiff alleges that the City is liable for inadequately performing background checks on the officers it employs and having a “get tough” policy of intimidation against the employees of Stewart Food. These policies and customs, Plaintiff contends, caused the constitutional violations. In addition, Plaintiff brings state law claims for negligence and intentional infliction of emotional distress. Plaintiff further alleges that three individual Defendants, Officer Rodriguez, Vernon Stewart, and Tina Stewart falsely stated to Plaintiffs granddaughter and others that Plaintiff was a thief. Thus, Plaintiff brings a defamation action against these three Defendants, as well as a claim for intentional infliction of emotional distress. II. ANALYSIS Pursuant to Fed.R.Civ.P. 12(b)(6), Defendants have moved to dismiss Plaintiffs § 1983 and state law tort claims on the grounds that they fail to state a claim upon which relief can be granted. In the alternative, Defendants have moved pursuant to Fed.R.Civ.P. 12(e) for a more definite statement of the basis of Plaintiffs constitutional claims against Officer Rodriguez. When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court accepts as true all well-pleaded allegations in the complaint, and views them in a light most favorable to the plaintiff. See Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir.1993). Unlike a motion for summary judgment, a motion to dismiss should be granted only when it appears without a doubt that the plaintiff can prove no set of facts in support of her claims that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994). The United States Court of Appeals for the Fifth Circuit has noted that dismissal for failure to state a claim is disfavored and will be appropriate only in rare circumstances. Mahone v. Addicks Util. Dist. Of Harris County, 836 F.2d 921, 926 (5th Cir.1988). Finally, the Court notes that recent judicial attempts to impose a" }, { "docid": "21124200", "title": "", "text": "rather than the plaintiffs likelihood of success on the merits. See Millennium Restaurants, 191 F.Supp.2d at 809. A motion to dismiss an action for failure to state a claim “ ‘admits the facts alleged in the complaint, but challenges plaintiffs right to relief based upon those facts.’ ” Crowe v. Henry, 43 F.3d 198, 203 (5th Cir.1995) (quoting Ward v. Hudnell, 366 F.2d 247, 249 (5th Cir.1966)). “[F]or purposes of the motion to dismiss, (1) the complaint is construed in the light most favorable to the plaintiff, (2) its allegations are taken as true, and (3) all reasonable inferences that can be drawn from the pleadings are drawn in favor of the pleader.” 5A Wright & Miller, Federal Practice & Procedure § 1357, at 417 (2004 West). “The district court may not dismiss a complaint under rale 12(b)(6) ‘unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts, not mere conclusory allegations.” Id.; see also Kaiser Aluminum & Chemical Sales v. Avondale Shipyards, 677 F.2d 1045 (5th Cir.1982). That being said, it is well established that courts do not have to accept every allegation in the complaint as true in considering its sufficiency. 5A Wright & Miller, Federal Practice & Procedure § 1357, at 548-549; see also Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974) (conclusory allegations and unwarranted deductions of fact are not admitted as true); see also Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994) (accepting as true, for the purposes of a Rule 12(b)(6) dismissal, well-pleaded factual allegations, but rejecting “conclusory allegations or unwarranted deductions of fact.”). A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction is analyzed under the same standard" }, { "docid": "17426760", "title": "", "text": "the allegations of the complaint in the light most favorable to the plaintiff. Fed R. Civ. P. 12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir.1994). Furthermore, a court must accept all reasonable inferences from the complaint and consider all allegations as true. Id. A court may not, however, accept conclusory allegations and unwarranted factual deductions as true. Gersten v. Rundle, 833 F.Supp. 906, 910 (S.D.Fla.1993) (citing Associated Builders, Inc., v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.1974)). Only pleadings and attached written exhibits may be considered in making these determinations. See Fed. R.Civ.P. 10(c); GSW, Inc., v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir.1993). Unless it appears beyond doubt that a plaintiff can prove no set of facts entitling him to relief, a complaint should not be dismissed for failure to state a claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Runnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir.1994). “Rule 12(b)(6) dismissals are particularly disfavored in fact-intensive antitrust cases.” Covad Communications Co. v. BellSouth Corp., 299 F.3d 1272, 1279 (11th Cir.2002). A plaintiff is “entitled to survive a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6) if there is any set of facts that, if proven at trial, would entitle [it] to recover.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 551 n. 8, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). A court may not assume, however, that a plaintiff can prove facts that it has not alleged or that a defendant has violated laws in ways that have not been alleged. Id. at 526, 103 S.Ct. 897; Beck v. Interstate Brands Corp., 953 F.2d 1275, 1276 (11th Cir.1992) (per curiam). Nor is the court bound to accept as true a legal conclusion couched as a factual allegation. See B.H. Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Although the federal rules embrace a liberal" }, { "docid": "21210343", "title": "", "text": "— to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. -, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Thus, we have a pleading regime that appears to require minimal allegations of fact, but, at the same time, our assessment of a motion to dismiss on immunity grounds depends entirely upon whatever few facts are alleged. See Marx, 855 F.2d at 789 (noting the “case-by-case” nature of immunity determinations). Courts must take great care in considering immunity defenses to ensure that neither of these somewhat antagonistic, but equally potent, concerns is allowed to eclipse the other. In my view, the majority skews too far in favor of liberal pleading concerns in its treatment of Weissman’s complaint, giving his allegations far too much deference. Two familiar principles impose practical limits on our acceptance of a plaintiffs allegations upon a motion to dismiss on the ground of absolute immunity. First, and I need hardly dwell on this point, it is beyond dispute that we take only well pleaded factual allegations as true, and we draw only reasonable inferences in favor of the plaintiff. See Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir.1992); Marrero v. City of Hialeah, 625 F.2d 499, 502 (5th Cir.1980); see also Long v. Satz, 181 F.3d 1275, 1278 (11th Cir.1999) (per curiam) (“reasonable inferences”); Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.1974) (same). This is true in all cases reviewing a motion to dismiss under Rule 12(b)(6). “[C]om-plaints are not impregnable”; any conclu-sory allegations, unwarranted deductions of fact or legal conclusions masquerading as facts do not prevent dismissal. Associated Builders, Inc., 505 F.2d at 99; see also Oxford Asset Mgmt. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.2002); Marsh, 268 F.3d at 1036 n. 16. The majority phrases the standard — in a somewhat muddled formulation — thusly: “We review de novo the district court’s denial of a" }, { "docid": "17426759", "title": "", "text": "is “so vague that a party cannot reasonably be required to frame a responsive pleading.” Fed.R.Civ.P. 12(e); Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 11 F.3d 364, 367 (11th Cir.1996). The Eleventh Circuit Court of Appeals refers to the most vague pleadings as “shotgun pleadings.” One typical feature of a shotgun pleading is incorporation of the same lengthy allegations into each claim alleged, which makes it difficult “to know which allegations of fact are intended to support which claim(s) for relief.” Anderson, 11 F.3d at 366. Lockheed’s Complaint is not a shotgun pleading. Lockheed does repeatedly incorporate into each Count all of the general allegations in paragraphs 1-168. In each Count, however, Lockheed also reiterates in detail the particular relevant portions of those general allegations. Erskine was able to and did file adequate responsive motions to this Complaint. For these reasons, Ers-kine’s motion for a more definite statement is denied. III. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM For purposes of a motion to dismiss, a court must view the allegations of the complaint in the light most favorable to the plaintiff. Fed R. Civ. P. 12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir.1994). Furthermore, a court must accept all reasonable inferences from the complaint and consider all allegations as true. Id. A court may not, however, accept conclusory allegations and unwarranted factual deductions as true. Gersten v. Rundle, 833 F.Supp. 906, 910 (S.D.Fla.1993) (citing Associated Builders, Inc., v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.1974)). Only pleadings and attached written exhibits may be considered in making these determinations. See Fed. R.Civ.P. 10(c); GSW, Inc., v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir.1993). Unless it appears beyond doubt that a plaintiff can prove no set of facts entitling him to relief, a complaint should not be dismissed for failure to state a claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Runnings v. Texaco, Inc., 29" }, { "docid": "19160346", "title": "", "text": "Dist., 184 F.Supp.2d 606 (S.D.Tex.2002); Wallace v. City of Montgomery, 956 F.Supp. 965, 976 (M.D.Ala.1996). Therefore, Defendants’ Unopposed Partial Motion to Dismiss is hereby GRANTED with respect to all claims brought against the Individual Defendants in their official capacities. Individual Capacity Claims Next, Defendants move to dismiss the claims asserted against the Individual Defendants in their individual capacities pursuant to Fed.R.Civ.P. 12(b)(6). A party is entitled to dismissal under Fed.R.Civ.P. 12(b)(6) when an opposing party fails to state a claim upon which relief can be granted. When considering a 12(b)(6) motion, the Court accepts as true all well-pleaded allegations in the complaint, and views them in a light most favorable to the plaintiff. See Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir.1993). “However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.1993). Unlike a motion for summary judgment, a motion to. dismiss should be granted only when it appears without a doubt that the plaintiff can prove no set of facts in support of her claims that would entitle her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Home Capital Collateral, Inc. v. FDIC, 96 F.3d 760, 764 (5th Cir.1996); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994). The Fifth Circuit has noted that dismissal for failure to state a claim is disfavored and is appropriate only in rare circumstances. See Mahone v. Addicks Util. Dist. of Harris County, 836 F.2d 921, 926 (5th Cir.1988). A.Individual Capacity Claims brought pursuant to Title IX Although the Fifth Circuit has not directly addressed the issue of individual liability under Title IX, the majority of courts that have considered the issue have ruled that Title IX does not permit suits against individuals. See Boulahanis v. Bd. of Regents, 198 F.3d 633, 640 (7th Cir.1999); Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 611 (8th Cir.1999); Smith v. Metro. Sch. Dist. Perry Township, 128 F.3d 1014, 1019 (7th Cir.1997);" }, { "docid": "8541601", "title": "", "text": "Defendants’ Motions to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) [Dkt. Nos. 53, 59 and 63] With respect to the Plaintiffs’ claim pursuant to the UN Convention, the Court did not require the Plaintiffs to re-plead the allegations in connection therewith. However, the Court finds that there is no private right of action under the UN Convention, such that the claim is subject to dismissal as to all Defendants under Rule 12(b)(6). In addition, the Court finds that the Plaintiffs’ failure to warn claims against Novartis and CHADD are also subject to Rule 12(b)(6) dismissal for failure to state a claim upon which relief can be granted, as discussed infra. A. Motion to Dismiss Standard When considering a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a district court must accept all well-pleaded facts as true, and construe them in favor of the plaintiff. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Petta v. Rivera, 143 F.3d 895, 897 (5th Cir.1998); McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir. 1992). The plaintiff is only required to plead sufficient information to outline the elements of his or her cause of action or to permit reasonable inferences to be drawn that these elements exist. See General Star Indemni ty, Co. v. Vesta Fire Ins., Corp., 173 F.3d 946, 950 (5th Cir.1999); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994). See also 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE § 1216 (2d ed.1990). In other words, the complaint must simply provide the opposing party with fair notice of the plaintiffs claim and the grounds upon which it is based. See Conley, 355 U.S. at 47, 78 S.Ct. 99. The Supreme Court has stated, and the Fifth Circuit has repeatedly cited “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts" }, { "docid": "13994926", "title": "", "text": "16.29; 11) Texas common law trademark infringement; and 12) civil conspiracy. In lieu of filing an answer, Defendant Outtask filed the instant Motion to Dismiss six of Southwest’s claims pursuant to Rule 12(b)(6): 1) computer fraud and abuse in violation of 18 U.S.C. § 1030, 2) misappropriation, 3) breach of Southwest.com Use Agreement, 4) interference with business relations, 5) trespass, and 6) harmful access by computer. Defendant FareChase has not joined in the instant motion. The Court will address each of Outtask’s arguments separately below. II. RULE 12(b)(6) MOTION TO DISMISS STANDARD In considering a motion to dismiss a complaint for failure to state a claim, the Court must accept as true the non-mov-ant’s well-pleaded factual allegations and any reasonable inferences to be drawn from them. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994). To avoid dismissal for failure to state a claim, however, a plaintiff “must plead specific facts, not mere conclusory allegations.” Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir.1992) (citation omitted). Thus, the Court will not accept as true any conclusory allegations or unwarranted deductions of fact. Generally, the Court may not look beyond the pleadings, except in instances where public officials’ qualified immunity is raised. Compare Mahone v. Addicks Util. Dist., 836 F.2d 921, 936 (5th Cir.1988) with Babb v. Dorman, 33 F.3d 472 (5th Cir.1994) [and] Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995) [and ] Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985). Dismissal for failure to state a claim is not favored by the law. Mahone, 836 F.2d at 926. A plaintiffs “complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (“The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to" }, { "docid": "22373268", "title": "", "text": "claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This strict standard of review under rule 12(b)(6) has been summarized as follows: “The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.” 5 CHARLES A. WRIGHT & ARTHUR R. MlL-ler, Federal Practioe and Procedure § 1357, at 601 (1969). Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997) (some citation information omitted). “In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts, not mere conclusory allegations. We will thus not accept as true conclusory allegations or unwarranted deductions of fact.” Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994) (internal citations, quotation marks and ellipses omitted). In considering a motion to dismiss for failure to state a claim, a district court must limit itself to the contents of the pleadings, including attachments thereto. Fed.R.Civ.P. 12(b)(6). Here, the court included, in its review, documents attached not to the pleadings, but to the motion to dismiss. Plaintiffs did not object in the district court to this inclusion and do not question it on appeal. We note approvingly, however, that various other circuits have specifically allowed that “[documents that a defendant attaches to a motion to dismiss are consid ered part of the pleadings if they are referred to in the plaintiffs complaint and are central to her claim.” Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993). In so attaching, the defendant merely assists the plaintiff in establishing the basis of the suit, and the court in making the elementary determination of whether a claim has been stated. III. Both sides agree that New York law controls construction of the Agreement. The law of New York specifies that only those in privity of contract or who enjoy an intended and immediate third-party beneficiary relationship to a contract may sue thereon and that “[wjhere" }, { "docid": "9602617", "title": "", "text": "motion to dismiss, the complaint must be construed in a light most favorable to the plaintiff and the factual allegations taken as true. See SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.), reh’g denied, 840 F.2d 25 (11th Cir.), cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988). According to the Eleventh Circuit: [T]he Supreme Court has stated that the “accepted rule” for appraising the sufficiency of a complaint is “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Tiftarea Shopper, Inc. v. Georgia Shopper, Inc., 786 F.2d 1115, 1117-18 (11th Cir.1986) (quoting Conley). Id. A complaint may not be dismissed because the plaintiffs claims fail to support the legal theory he relies upon since the court must determine if the allegations provide for relief on any possible theory. Robertson v. Johnston, 376 F.2d 43 (5th Cir.1967). We hasten to add that this motion is viewed with disfavor and rarely granted. See e.g., Madison v. Purdy, 410 F.2d 99, 100 (5th Cir.1969); International Erectors, Inc. v. Wilhoit Steel Erectors & Rental Service, 400 F.2d 465, 471 (5th Cir.1968) (noting that “[dismissal of a claim on the basis of barebone pleadings is a precarious disposition with a high mortality rate.”). The pleadings must show, in short, that the Plaintiff has no claim before the 12(b)(6) motion may be granted. The standard to be applied in reviewing summary judgment motions is stated unam biguously in Rule 56(c) of the Federal Rules of Civil Procedure: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. It may be entered only where there is" }, { "docid": "22373267", "title": "", "text": "stock was converted to an option to purchase 0.611 shares of Philips stock. In early 1998, Philip disclosed that it had filed inaccurate financial statements for several years. This revelation led to a sharp decrease in the price of Philip common stock. The complaint alleged that Morgan Stanley and Pereira had failed to conduct adequate investigation of Philip or to inform the Board of the problems that ultimately led to the decline in Philip’s stock price and the value of plaintiffs’ options. II. A motion to dismiss under rule 12(b)(6) “is viewed with disfavor and is rarely granted.” Kaiser Aluminum, & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). The district court may not dismiss a complaint under rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This strict standard of review under rule 12(b)(6) has been summarized as follows: “The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.” 5 CHARLES A. WRIGHT & ARTHUR R. MlL-ler, Federal Practioe and Procedure § 1357, at 601 (1969). Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997) (some citation information omitted). “In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts, not mere conclusory allegations. We will thus not accept as true conclusory allegations or unwarranted deductions of fact.” Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994) (internal citations, quotation marks and ellipses omitted). In considering a motion to dismiss for failure to state a claim, a district court must limit itself to the contents of the pleadings, including" }, { "docid": "21124201", "title": "", "text": "(5th Cir.2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts, not mere conclusory allegations.” Id.; see also Kaiser Aluminum & Chemical Sales v. Avondale Shipyards, 677 F.2d 1045 (5th Cir.1982). That being said, it is well established that courts do not have to accept every allegation in the complaint as true in considering its sufficiency. 5A Wright & Miller, Federal Practice & Procedure § 1357, at 548-549; see also Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974) (conclusory allegations and unwarranted deductions of fact are not admitted as true); see also Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994) (accepting as true, for the purposes of a Rule 12(b)(6) dismissal, well-pleaded factual allegations, but rejecting “conclusory allegations or unwarranted deductions of fact.”). A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction is analyzed under the same standard as a motion to dismiss under Rule 12(b)(6). See Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). Analysis A. Sovereign Immunity As stated in the Court’s previous Order dated December 12, 2005, FEMA’s primary defense remains that of sovereign immunity. FEMA argues that because it is a branch of the Department of Homeland Security, itself an executive department of the United States, then as a component of that department, plaintiffs’ action is essentially one against the United States. Thus plaintiffs’ complaint is subject to a defense of sovereign immuni ty. See Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963); Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). Sovereign immunity “applies alike to causes of action arising under acts of Congress, and to those arising from some violation of rights conferred upon the citizen by the Constitution.” Lynch v. United States, 292 U.S. 571, 582, 54 S.Ct. 840, 78 L.Ed. 1434 (1934). Sovereign immunity also bars" }, { "docid": "19938854", "title": "", "text": "9(b) is treated as a Rule 12(b)(6) dismissal for failure to state a claim. Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir.1996). If it appears that given an opportunity to amend the pleading, the plaintiff would be able to state a claim upon which relief could be granted, the court should grant leave to amend. People’s Choice Home Loan, Inc. v. Mora, No. 3:06-CV-1709-G, 2007 WL 708872, *4 (N.D.Tex. Mar. 7, 2007), citing Kennard v. Indianapolis Life Ins. Co., 420 F.Supp.2d 601, 608-09 (N.D.Tex.2006). B. Rule 12(b)(6) Dismissal under Rule 12(b)(6) is disfavored and a motion to dismiss under the rule is rarely granted. Lowrey v. Texas A & M University System, 117 F.3d 242, 247 (5th Cir.1997). The court must construe the complaint liberally in favor of the plaintiff and all well pleaded facts must be taken as true and any doubts regarding the sufficiency of the claim must be resolved in favor of the plaintiff. Id.; Jones v. Alcoa, Inc., 339 F.3d 359, 362 (5th Cir.2003). Nevertheless conclusory allegations and unwarranted factual deductions will not suffice to avoid a motion to dismiss. United States ex rel. Willard v. Humana Health Plan of Texas, Inc., 336 F.3d 375, 379 (5th Cir.2003). Traditionally, dismissal was not proper “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Lowrey, 117 F.3d at 247, citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In a recent antitrust case, Bell Atlantic Corporation v. Twombly, — U.S. —, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (7-2), however, the Supreme Court appears to have modified the Conley rule by inserting a new “plausibility standard,” when it pronounced that the “‘no set of facts’ language” test “has earned its retirement” and “is best forgotten.” Bell Atlantic, 127 S.Ct. at 1969, opined that “a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions and a formulaic recitation of the elements of a cause of action" }, { "docid": "20682766", "title": "", "text": "more definite statement of the basis of Plaintiffs constitutional claims against Officer Rodriguez. When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court accepts as true all well-pleaded allegations in the complaint, and views them in a light most favorable to the plaintiff. See Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir.1993). Unlike a motion for summary judgment, a motion to dismiss should be granted only when it appears without a doubt that the plaintiff can prove no set of facts in support of her claims that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994). The United States Court of Appeals for the Fifth Circuit has noted that dismissal for failure to state a claim is disfavored and will be appropriate only in rare circumstances. Mahone v. Addicks Util. Dist. Of Harris County, 836 F.2d 921, 926 (5th Cir.1988). Finally, the Court notes that recent judicial attempts to impose a “heightened pleading standard” for § 1983 claims against municipalities have been expressly rejected by the Supreme Court. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993) (“We think it impossible to square the “heightened pleading standard” applied by the Fifth Circuit in this case with the liberal system of “notice pleading” set up by the Federal Rules.”)- Thus § 1983 claims against municipalities are governed by the standard of Fed.R.Civ.P. 8(a)(2), and Plaintiff need only submit “a short and plain statement of the claim showing the pleader is entitled to relief.” Since Defendants filed their Motion to Dismiss, the Court has given Plaintiff leave to amend her Complaint. Plaintiff has accordingly filed a Third Amended Original Complaint. There is no question that this is now the “live” Complaint, superseding the Second Amended Original Complaint. However, there is some question respecting the precise effect Plaintiffs amendment must have on Defendants’ Motion to Dismiss. At least one panel of the Fifth Circuit has stated" }, { "docid": "18994071", "title": "", "text": "standard. Randolph cites Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000), which cites the Supreme Court’s opinion in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), for the proposition that “[m]otions to dismiss under Rule 12(b)(6) are viewed with disfavor and should rarely be granted.” (Docket Entry No. 34 at 4). Neither argument is a basis for reconsideration. Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a) (2). Twombly abrogated Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. 99 (1957), which held that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” See Twombly, 550 U.S. at 562-63, 127 S.Ct. 1955 (“Conley’s ‘no set of facts’ language ... is best forgotten as an incomplete, negative gloss on an accepted pleading standard .... ”). To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955; see also Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir.2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). In Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court elaborated on the pleading standards discussed in Twombly. The Court explained that “the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Iqbal explained that “[a] claim has facial plausibility" }, { "docid": "16975249", "title": "", "text": "fraud actions, the Fifth Circuit applies and strictly interprets Rule 9(b) as requiring a plaintiff to “specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.” Abrams v. Baker Hughes, Inc., 292 F.3d 424, 430 (5th Cir.2002); Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir.)(citing Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)), cert. denied, 522 U.S. 966, 118 S.Ct 412, 139 L.Ed.2d 315 (1997). The Fifth Circuit treats a dismissal for failure to plead fraud with particularity under Rule 9(b) as a dismissal for failure to state a claim upon which relief can be granted under Rule 12(b)(6). Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir.1996), citing Shushany v. Allwaste, Inc., 992 F.2d 517, 520 (5th Cir.1993). .In reviewing the sufficiency of a complaint in response to a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), before any evidence has been submitted, the district court's task is limited. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support its claims. Id. The district court should consider all allegations in favor of the plaintiff and accept as true all well-pleaded facts in the complaint. Lawal v. British Airways, PLC, 812 F.Supp. 713, 716 (S.D.Tex.1992). Dismissal is not appropriate “unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle him to relief”. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Nevertheless, conclusory allegations or legal conclusions masquerading as factual conclusions do not defeat a motion to dismiss. Fernandez-Montes v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir.1993). Courts need only accept well-pleaded factual allegations as true. Shushany v. Allwaste, Inc., 992 F.2d 517, 520, 523 (5th Cir.1993); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994)(courts" } ]

[ { "docid": "14093112", "title": "", "text": "investor in the corporation. Bowersoek itself recognizes that “every case turns on its own facts.” A review of the entire record discloses that substantial evidence sustains the findings of the trial court and that the inferences which that court drew from the evidence are reasonable. Neither a choice between two permissible views of the weight of the evidence nor a choice between conflicting reasonable inferences from the evidence is clearly erroneous. The taxpayer has failed to sustain the burden of proving that the payments in question are deductible as interest under § 163(a). Affirmed. . Originally the debenture notes were issued in the amount of $67,003.20. Later, additional contributions of $2,615.20 were made to common stock and $10,460.80 to debenture notes. The 4 to 1 ratio was changed insignificantly when two stockholders disposed of their interests and an eighth individual joined the corporation. . The original debenture notes matured in 1966 and bore 4% interest. In 1960 new notes were exchanged for the original notes. The new notes matured in 1970 and carried 6% interest. Through oversight, interest was paid annually for the first two years rather than semi-annually. . 26 U.S.C. § 163(a). . Charter Wire, Inc., v. United States, 7 Cir., 309 F.2d 878, 880, certiorari denied 372 U.S. 965, 83 S.Ct. 1090, 10 L.Ed.2d 129. . Brake & Electric Sales Corporation v. United States, 1 Cir., 287 F.2d 426, 427; P. M. Finance Corporation v. Commissioner, 3 Cir., 302 F.2d 786, 789. . Bowersoek Mills & Power Co. v. Commissioner, 10 Cir., 172 F.2d 904, 907. . See Bowersoek Mills & Power Co. v. Commissioner, supra, 172 F.2d p. 907. . See Kraft Foods Company v. Commissioner, 2 Cir., 232 F.2d 118, 126-127. . See Bowersock Mills & Power Co. v. Commissioner, 10 Cir., 172 F.2d 904, 907. . Rowan v. United States, 5 Cir., 219 F.2d 51, 55. . Wachovia Bank and Trust Company v. United States, 4 Cir., 288 F.2d 750, 756. . Charter Wire, Inc., v. United States, 7 Cir., 309 F.2d 878, 880, certiorari denied 372 U.S. 965, 83 S.Ct. 1090, 10 L.Ed.2d" } ]

[ { "docid": "12956578", "title": "", "text": "but, in continuing, demonstrates that he placed the burden on the Government to prove by clear and convincing evidence that the arrangement and the notes were “phony” or “fraudulent.” This is not the rule as to burden of proof which should be applied. The proper standards are set forth in McSorley’s, Inc. v. United States, 323 F. 2d 900 (10th Cir.), and Crawford Drug Stores v. United States, 220 F.2d 292 (10th Cir.). It is not necessary to further describe the rule or to quote from these opinions. The taxpayer must introduce evidence to prove the specific amount of the claimed deduction and that the assessment is erroneous. Decker v. Korth, 219 F.2d 732 (10th Cir.). The appellee argued to this court on the basis of whether or not the notes themselves were genuine and urged that they were in the proper form, and that they were “standard printed commercial notes.” This is not however the basic question. It is instead whether the substance of the arrangement as revealed by the entire transaction created a real indebtedness or was an investment in the equity of the enterprise. The details may be cast in the form of a debt, but the arrangement in its entirety may be otherwise. The question as to whether a given transaction or arrangement created risk capital or whether it created indebtedness is basically a question of fact to be determined by the trial court from its analysis of the many factors and elements which make up the whole. Each case depends upon its particular facts. It is clear that the Commissioner cannot dictate the proportion of equity to debt under these circumstances. Nassau Lens Co. v. Comm’r, 308 F.2d 39 (2d Cir.); Sherwood Memorial Gardens v. Comm’r, 350 F.2d 225 (7th Cir.). We feel that the error in the application of the rule on the burden of proof is so fundamental that the ease must be remanded to the trial court for a new trial. We have no way of knowing what rule was actually applied other than as indicated in the oral opinion, and this," }, { "docid": "3975004", "title": "", "text": "v. C. I. R., 298 F.2d 183 (1st Cir. 1962); (7) An informed, unrelated lender dealing at arm’s length would not have made these ‘loans’, Wood Preserving Corp. of Baltimore v. United States, 347 F.2d 117, 119 (4th Cir. 1965); Gilbert v. Comm., 262 F.2d 512, 513 (2d Cir. 1959). “We therefore must conclude that plaintiff has failed to sustain its burden of proving that the interest here paid is deductible.” The issue as to whether or not “interest” on payments of the nature made by the appellant are deductible under section 163(a) of the Code is basically a question of fact. The relationship of the parties and a number of pertinent factors must be examined and related to each other. The burden is on the taxpayer to demonstrate that the payments made by it fall within the pertinent section. We agree with the trial court that the appellant failed to meet this burden. The standards and the policy were described by this court in Mc-Sorley’s, Inc. v. United States, 323 F.2d 900 (10th Cir.). It is further well established that on appeal this court will not disturb the conclusion of the trial court when reasonable conflicting inferences may be drawn and conclusions reached from an analysis and balancing of the several factors. Covey Investment Co. v. United States, 377 F.2d 403 (10th Cir.). The facts and circumstances must be developed in each case, and there is no single controlling condition or characteristic. John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 66 S.Ct. 299, 90 L.Ed. 278; United States v. In-termountain Furniture Manufacturing Co., 363 F.2d 554 (10th Cir.); Crawford Drug Stores v. United States, 220 F.2d 292 (10th Cir.); Arlington Park Jockey Club, Inc. v. Sauber, 262 F.2d 902 (7th Cir.). This case is different from the ordinary case in the fact that the parent corporation is exempt from federal income taxes and thereby one of the factors which sometimes motivates “loan” arrangements is absent. One of the strongest arguments advanced by appellant is based upon the case of Jack Daniel Distillery v. United States, 379" }, { "docid": "14294059", "title": "", "text": "On its income tax returns for the years in issue the taxpayer deducted the “interest” it had paid to the appellants during each fiscal year pursuant to section 163(a) of the Code. The Commissioner disallowed these deductions. The appellants urge that the advances made by them represent indebtedness, and that the taxpayer validly deducted the interest paid on this indebtedness pursuant to § 163(a). The Commissioner asserts that the advances made by appellants were contributions to capital and that the payments made to the appellants by the taxpayer were returns on capital investment. Although there is a plethora of precedent on the question of whether advances by stockholders to closely held corporations are to be considered as debts or contributions to capital, each case must be decided on its unique fact situation, and no single test is controlling or decisive in making this determination. Harlan et al. v. United States, 5 Cir. 1969, 409 F.2d 904; Tomlinson v. 1661 Corporation, 5 Cir. 1967, 377 F.2d 291; United States v. Henderson, 5 Cir. 1967, 375 F.2d 36. The appellants had the burden to prove that the advances represented indebtedness rather than equity, and the fact that they intended to make loans and not capital contributions to the taxpayer is not determinative of the equity-capital tax issue. Nor is it decisive that the notes were executed in accordance with state law and described by the appellants and the taxpayer as “loans”. Fin Hay Realty Co. v. United States, 3 Cir. 1968, 398 F.2d 694; Tomlinson v. 1661 Corporation, swpra. These are just several of the numerous factors to be considered in determining whether the funds advanced to the taxpayer represented capital contributions rather than loans. We have expatiated on the criteria with some specificity as follows: There are at least eleven separate determining factors generally used by the courts in determining whether amounts advanced to a corporation constitute equity capital or indebtedness. They are (1) the names given to the certificates evidencing the indebtedness; (2) the presence or absence of a maturity date; (3) the source of the payments; (4) the right" }, { "docid": "6715685", "title": "", "text": "such advances is a factor in determining whether the advances are investments in or loans to the corporation. Gilbert v. Commissioner, supra; Arlington. Park Jockey Club, Inc. v. Sauber, supra; Matthiessen v. Commissioner, 1951, 16 T.C. 781. . “Whore purported loans are made in proportion to stockholdings the transaction is subject to close scrutiny, but this circumstance is certainly not in itself conclusive that the advances are capital contributions. At any rate, the advances here were not in direct proportion to stockholdings * * Earle v. W. J. Jones & Son, supra [200 F.2d 850]. See also Wilshire & Western Sandwiches v. Commissioner, supra, and Smith v. Commissioner, 1951, 17 T.C. 135. . For a discussion of the significance of this factor, see Gilbert v. Commissioner, supra. . See New England Lime Company v. Commissioner, 1949, 13 T.C. 799. . Wilshire & Western Sandwiches v. Commissioner, 9 Cir., 1949, 175 F.2d 718. The instant case is clearly distinguishable from cases where the acts of the lender indicate that the advance is to be at the risk of the venture. In this connection see Arlington Park Jockey Club, Inc. v. Sauber, 7 Cir., 1959, 262 F.2d 902, and also the discussion in Gilbert v. Commissioner, 2 Cir., 1957, 248 F.2d 399, at page 406. . See Commissioner of Internal Revenue v. Proctor Shop, 9 Cir., 1936, 82 F.2d 792; Wilshire & Western Sandwiches v. Commissioner, supra; Earle v. W. J. Jones & Son, supra; and Rowan v. United States, 5 Cir., 1955, 219 F.2d 51. . See Root v. Commissioner, 9 Cir., 1955, 220 F.2d 240; Matthiessen v. Commissioner, 1951, 16 T.C. 781. . See John Kelley Co. v. Commissioner, supra; Swoby Corporation v. Commissioner, supra; Dobkin v. Commissioner, 1950, 15 T.C. 31; Bair v. Commissioner, 1951, 16 T.C. 90; Arlington Park Jockey Club, Inc. v. Sauber, supra. . See Rowan v. United States, 5 Cir., 1955, 219 F.2d 51, 55, where the court ■also said: “It is entirely within the ■competence of Congress to provide by •statute for such ratio if it deems it advisable or necessary within the scheme" }, { "docid": "17309278", "title": "", "text": "determining the legal relationship for tax purposes. Jennings v. United States, 7 Cir., 1959, 272 F.2d 842. Ortmayer v. C. I. R., supra. Such intention may be ascertained from the testimony of witnesses and from objective manifestations of intent. No single indicium or criterion is conclusive. Arlington Park Jockey Club v. Sauber, 7 Cir., 1959, 262 F.2d 902. Similarly here, the legal relationship between the closely-held corporation and its stockholders as to these particular payments must be established by a consideration of all relevant factors indicating the true intent of the parties. After examination of the relevant facts, we agree with the Tax Court that the legal effect of the payments in question was to provide dividends to Spheeris. Numerous objective facts support this conclusion: none of the withdrawals was evidenced by promissory notes or secured by collateral; no interest was charged or paid; no dates for repayment were set and the single repayment came after the instant proceedings were initiated; no dividends were declared,- but withdrawals were taken from the closely-controlled corporation as Spheeris and his family needed funds; and finally, prior loans made to Towne were evidenced by promissory notes and repaid with interest. Petitioners point to several factors they feel indicate a contrary result: the testimony of Spheeris and S. J. Papas, the accounting entries in Towne’s books, the fact that withdrawals were not made in proportion to stockholders’ proprietary interest, and the statement in Towne’s answer in the 1954 mismanagement suit that the payments were loans. However, in the particular circumstances here, such facts cannot overcome the proper inference that Spheeris was taking advantage of his position in a closely-held family corporation to provide himself with disguised dividends with nothing more than an accounting entry that such payments were loans and with no obligation to repay. The decision of the Tax Court is affirmed. Affirmed. . Internal Revenue Code of 1939, Sec. 115. Distributions by Corporations. “(a) Definition of Dividend. — The term ‘dividend’ when used in this chapter * * means any distribution made by a corporation to its shareholders, whether in money or in" }, { "docid": "13043074", "title": "", "text": "399 (2d Cir. 1957). Petitioner is not obligated to pay interest, in a fixed amount or otherwise, nor is any principal amount ascertainable and payable in any event. Gloucester Ice & Cold Storage Co. v. Commissioner, 298 F.2d 183 (1st Cir. 1962). While no one factor is conclusive in determining whether the payments in question were dividends, Commissioner v. Meridian & Thirteenth Realty Co., 132 F.2d 182 (7th Cir. 1942), we think the Tax Court considered and gave weight to the appropriate factors in evidence in reaching its decision that as a matter of economic reality and for the purposes of the federal income tax law petitioner was not a debtor of the certificate holders. Among these factors were petitioner’s thin capitalization, totally inadequate for carrying out the corporate purpose, John Kelley Co. v. Commissioner, 326 U.S. 521, 526, 66 S.Ct. 299, 90 L.Ed. 278 (1946); Brake & Electric Sales Corp. v. United States, 287 F.2d 426, 428 (1st Cir. 1961); the speculative nature of the enterprise and the anticipated returns based on sales of lots, recognized by Berkowitz and his group, Milwaukee & Suburban Transport Corp. v. Commissioner, 283 F.2d 279, 282 (7th Cir. 1960), cert. denied 366 U.S. 965, 81 S.Ct. 1920, 6 L.Ed.2d 1256 (1961), vacated in part and remanded 367 U.S. 906, 81 S.Ct. 1917, 6 L.Ed.2d 1249 (1961); Arlington Park Jockey Club, Inc. v. Sauber, 262 F.2d 902, 905 (7th Cir. 1959); the .difficulty in perceiving any reason except tax avoidance for the use by a corporation for profit of the “land shares” method of obtaining land and capital usually employed by not-for-profit cemeteries because of their non-stock character, cf. Kolkey v. Commissioner, 254 F.2d 51 (7th Cir. 1958); and the obvious opportunity for tax avoidance in increasing the basis of petitioner’s lots by deducting payments to certificate holders as the cost of land sold and capital gains treatment of these amounts in the hands of the certificate holders. Gregory v. Helvering, 293 U.S. 465, 469-470, 55 S.Ct. 266, 79 L.Ed. 596 (1935). There is no contention that the Tax Court’s findings, based on uncontroverted" }, { "docid": "11279533", "title": "", "text": "266, 79 L.Ed. 596 (1935); Foresun, Inc. v. Commissioner of Internal Revenue, 348 F.2d 1006 (6th Cir. 1965); Gooding Amusement Co. v. Commissioner of Internal Revenue, 236 F.2d 159 (6th Cir. 1956), cert. denied, 352 U.S. 1031, 77 S.Ct. 595, 1 L.Ed.2d 599 (1957). In addition to indicating the specific^law under which he claims a deduction, where as here a taxpayer is attempting to establish that an advance is a true loan and not a contribution to capital the burden of doing so is upon him. Moughon v. Commissioner of Internal Revenue, 329 F.2d 399 (6th Cir. 1964); Wood Preserving Corp. of Baltimore v. United States, 347 F.2d 117 (4th Cir. 1965); Charter Wire, Inc. v. United States, 309 F.2d 878 (7th Cir. 1962), cert. denied 372 U.S. 965, 83 S.Ct. 1090, 10 L.Ed.2d 129 (1963). In determining whether the taxpayer has sustained the burden of establishing that a true loan and not a contribution to capital was intended when an advance has been made, a number of factors or tests must be taken into consideration. These include the presence or absence of a maturity date of the obligation, the name given to the writing (if any) evidencing the claimed obligation, the source of payments and repayments, the adequacy or inadequacy of capitalization, identity (or lack of identity) of interest between creditor and stockholder, the corporation’s ability to obtain financing from independent lending institutions, and the timing of the advance with reference to the organization of the corporation. See Foresun, Inc. v. Commissioner of Internal Revenue, supra; O. H. Kruse Grain and Milling v. Commissioner of Internal Revenue, 279 F.2d 123 (9th Cir. 1960); Gilbert v. Commissioner of Internal Revenue, 248 F.2d 399 (2d Cir. 1957), on remand decided January 23, 1958 (P-H Memo. T. C., par. 58,008), aff’d, 262 F.2d 512, cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959). No single factor is controlling. John Kelly Co. v. Commissioner of Internal Revenue, 326 U. S. 521, 66 S.Ct. 299, 90 L.Ed. 278 (1946). In the present situation the parties are in agreement as to the" }, { "docid": "3975003", "title": "", "text": "that the claimed interest payments are not deductible: (1) The promissory notes were long-term obligations with no acceleration clause in the event of non-payment of interest when due; (2) The notes were unsecured and were not covered by a loan agreement, Henderson v. United States, 245 F. Supp. 782, 784 (M.D.Ala.1965); (3) A large part of the proceeds was used to supply capital to undercapitalized subsidiary corporations, Burr Oaks Corp., 43 T.C. 635 (1965); (4) The advances were made by the parent to its wholly owned subsidiary, P. M. Finance Corp. v. Comm., 302 F.2d 786 (3rd Cir. 1962); (5) Notes amounting to $1 million were actually canceled 8y2 years before maturity, cf., Campbell v. Carter Foundation Production Co., 322 F.2d 827 (5th Cir. 1963); (6) The likelihood of payment of the notes at maturity, except by invasion of capital assets, was remote, for no reserve or sinking fund for their payment had been established, Charter Wire, Inc. v. United States, 309 F.2d 878, 881 (7th Cir. 1962); cf. Gloucester Ice & Cold Storage Co. v. C. I. R., 298 F.2d 183 (1st Cir. 1962); (7) An informed, unrelated lender dealing at arm’s length would not have made these ‘loans’, Wood Preserving Corp. of Baltimore v. United States, 347 F.2d 117, 119 (4th Cir. 1965); Gilbert v. Comm., 262 F.2d 512, 513 (2d Cir. 1959). “We therefore must conclude that plaintiff has failed to sustain its burden of proving that the interest here paid is deductible.” The issue as to whether or not “interest” on payments of the nature made by the appellant are deductible under section 163(a) of the Code is basically a question of fact. The relationship of the parties and a number of pertinent factors must be examined and related to each other. The burden is on the taxpayer to demonstrate that the payments made by it fall within the pertinent section. We agree with the trial court that the appellant failed to meet this burden. The standards and the policy were described by this court in Mc-Sorley’s, Inc. v. United States, 323 F.2d 900 (10th Cir.)." }, { "docid": "5490486", "title": "", "text": "inventories, and to meet other initial operating costs. The minutes of the previously referred to meeting of the taxpayer’s board of directors on May 4,1955, stated that in return for his financial assistance, Mr. Smith was to receive “6% interest on open account and up to one-half of interest on bank loans.” Beginning in 1956 and until the end of 1960, payments referred to as interest were regularly credited to Mr. Smith’s ledger account and made by check to him. No payments referred to as repayments on the principal of the advances were made until after the tax years currently in issue. The taxpayer was aware in the district court that the question of the nature of the advances was a question of fact and that the burden was upon it to establish that these advances were loans rather than capital investments. Jewell Ridge Coal Corp. v. Commissioner of Internal Revenue, 318 F.2d 695, 698 (4 Cir. 1963); Gilbert v. Commissioner of Internal Revenue, 262 F.2d 512, 513 (2 Cir.), cert. denied, 359 U.S. 1002, 79 S. Ct. 1139, 3 L.Ed.2d 1030 (1959). Accordingly, it introduced considerable evidence before Judge Thomsen for the purpose of acquainting the court with the circumstances which existed at the time Mr. Smith came to the financial assistance of the taxpayer. Although counsel for the taxpayer was clearly aware that the Supreme Court had observed almost two decades before that “[t]here is no one characteristic * * * which can be said to be decisive in the determination of whether [advances like those in the present case] are risk investments * * or debts,” John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 530, 66 S.Ct. 299, 304, 90 L.Ed. 278 (1946), it seems fair to say that he placed primary emphasis upon evidence which he felt demonstrated the intent of the parties in making and receiving the advances. This court and others have observed that the real intention of those who participated in a transaction like the one currently in issue is of crucial importance in determining later what relationship their conduct" }, { "docid": "8875648", "title": "", "text": "TOTAL 1957_ $42, 074. 80 $12, 719. 29 $54, 794. 09 1958_ 21, 664. 99 5, 249. 46 26, 914. 45 1959_ 23, 666. 15 4, 314. 37 27, 980. 52 1960_ 45, 128. 10 5, 519. 23 50, 647. 33 Total_ 132, 534. 04 27, 802. 35 160, 336. 39 14. Plaintiff filed with, the District Director of Internal Revenue, St. Paul, Minnesota, on or about August 8, 1968, timely claims for refund for each of the years 1957-1960 on Form 843. 15. Plaintiff’s refund claims were formally disallowed by the Commissioner, whose statutory notice of rejection was duly mailed under date of November 14, 1963. This suit is timely brought. 16. Plaintiff is the sole owner of the claims here relied upon, and no assignment or transfer thereof or any interest therein, has been made. 17. No action on these claims has been taken by the Congress of the United States, or by any department of the Oovemment except as hereinbefore set forth. CONCLUSION 03? LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover and the petition is, therefore, dismissed. This ease was referred to Trial Commissioner C. Murray Bernhardt, who prepared an opinion and findings of fact. We have adopted the statement of fact portion of his opinion and his findings of fact without change. We arrive at the same result via a similar route. Campbell v. Carter Foundation Production Company, 322 F. 2d 827, 831 (5th Cir. 1963). John Kelley Co. v. Comm’r, 326 U.S. 521 (1946). Cf. Kraft Foods Co. v. Comm’r, 232 F. 2d 118 (2d Cir. 1956). John Kelley Co. v. Comm’r, supra. Arlington Park Jockey Club v. Sauber, 262 F. 2d 902, 905 (7th Cir. 1959). Affiliated Research, Inc. v. United States, 173 Ct. Cl. 338, 351 F. 2d 646 (1965)." }, { "docid": "16872205", "title": "", "text": "the books of plaintiffs and the Los Angeles Dons, Ine., they were listed as loans. The Los Angeles Dons paid off all its liabilities other than the sums which had been advanced by plaintiff corporations, and was dissolved in December, 1948. On dissolution, each plaintiff received $274.29. In its income tax return for the calendar year 1948, Washington Park deducted as a bad debt, the loss of $227,225.71 which it sustained in December, 1948, when the Los Angeles Dons, Inc. dissolved. Similarly, in its return for the fiscal year ending April 30, 1949, Arlington deducted as a bad debt the loss of $227,225.71 which it likewise sustained in December, 1948. In determining whether the cash payments made by plaintiffs to the Los Angeles Dons, Inc. represented loans or additional capital investment, no single test can provide the answer. John Kelley Co. v. Commissioner, 326 U.S. 521, 530, 66 S.Ct. 299, 90 L.Ed. 278; Commissioner of Internal Revenue v. Meridian & Thirteenth Realty Co., 7 Cir., 132 F.2d 182. The burden of establishing that the advances were loans is upon the taxpayers. New Colonial Ice Co., Inc. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348; White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 83 L.Ed. 172. There were three series of advances from plaintiffs to the Los Angeles Dons, Inc. and they will be considered separately. The last advances of $27,500.00 each at a time when the Los Angeles Dons, Inc. was in a state of insolvency and was selling its assets to the Lindheimer group, clearly were not loans. There was no expectation by plaintiffs that same would be repaid. On oral argument plaintiffs’ counsel, with commendable candor, admitted the determination of the District Court in this respect should not be reversed. We next consider the advances of $100,000.00 made by plaintiff Washington Park on March 5, 1948, and the two payments by Arlington for $50,000.00 each on June 10, 1948 and September 8, 1948. By the time these advances were made, plaintiffs had had a full opportunity to appraise the disastrous results" }, { "docid": "14077470", "title": "", "text": "HASTINGS, Chief Judge. This case concerns the legal nature of certain payments made to Ode D. Jennings and Jeannette H. Jennings (taxpayers) by O. D. Jennings and Company, a corporation. Taxpayers claimed that such payments were merely the partial repayment oí a series of loans made by them to the corporation and that they were non-taxable. The Commissioner of Internal Revenue contended that these payments were taxable dividend distributions under Section 115 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 115. The Commissioner made a deficiency assessment which taxpayers paid and then filed claim for refund in the district court. The district court held that the amounts received by taxpayers were repayment of loans and that the deficiency taxes were erroneously assessed and ordered an appropriate refund with interest. From this decision the Government has appealed. Jeannette H. Jennings, John R. Bacon and Continental Illinois National Bank and Trust Company of Chicago, as executors of the estate of Ode D. Jennings, deceased, and Jeannette 11. Jennings are appellees herein. The ultimate issue before us is whether the advances in question constituted loans to the corporation or were additional capital investments by the taxpayers. That this question is not a new one is evidenced by the many decisions of this and other courts in delineating the various indicia as a guide in determining the intention of the parties in transactions involving closely-held corporations. Without attempting again to evaluate these various holdings, 3 it is sufficient to say that they clearly point out that the intention of the parties is a major factor in determining the true nature of the relationship between the parties and the legal effect of the facts as found by the trial court. While no single test can provide the answer, Arlington Park Jockey Club, Inc. v. Sauber, 7 Cir., 1959, 262 F.2d 902, yet the courts have looked to, “among other factors, the book entries, the debt-equity ratio, the presence of an agreement to maintain proportionality between the advances in question and the acknowledged risk capital, and the expectation of repayment.” Ortmayer v. C. I." }, { "docid": "13043073", "title": "", "text": "capital as were the corporations involved in the above cases. It was authorized to, and did, issue capital stock. There appears in the record no reason, except for tax avoidance, why the $60,000 for which the certificates of indebtedness were issued could not have been contributed to the corporation in return for stock, rather than casting the transaction in the form of an indebtedness which created a debt-to-equity ratio of 60 to 1. The burden of proving that the certificates evidenced indebtedness was on petitioner. Arlington Park Jockey Club v. Sauber, 262 F.2d 902, 905 (7th Cir. 1959). We approve the Tax Court’s statement, based on Gooding Amusement Co. v. Commissioner, 236 F.2d 159 (6th Cir. 1956), cert. denied, 352 U.S. 1031, 77 S.Ct. 595, 1 L.Ed.2d 599 (1957), that it was not precluded by the form of the certificates from inquiring into the real substance of the transactions, and that even in form the certificates do not meet the classic criteria of a bona fide debt set out in Gilbert v. Commissioner, 248 F.2d 399 (2d Cir. 1957). Petitioner is not obligated to pay interest, in a fixed amount or otherwise, nor is any principal amount ascertainable and payable in any event. Gloucester Ice & Cold Storage Co. v. Commissioner, 298 F.2d 183 (1st Cir. 1962). While no one factor is conclusive in determining whether the payments in question were dividends, Commissioner v. Meridian & Thirteenth Realty Co., 132 F.2d 182 (7th Cir. 1942), we think the Tax Court considered and gave weight to the appropriate factors in evidence in reaching its decision that as a matter of economic reality and for the purposes of the federal income tax law petitioner was not a debtor of the certificate holders. Among these factors were petitioner’s thin capitalization, totally inadequate for carrying out the corporate purpose, John Kelley Co. v. Commissioner, 326 U.S. 521, 526, 66 S.Ct. 299, 90 L.Ed. 278 (1946); Brake & Electric Sales Corp. v. United States, 287 F.2d 426, 428 (1st Cir. 1961); the speculative nature of the enterprise and the anticipated returns based on sales of" }, { "docid": "724132", "title": "", "text": "*.\" Jewell Ridge Coal Corp. v. Commissioner of Internal Revenue, 318 F.2d 695, 696 (4th Cir. 1963). It is within the confines of these familiar principles that we must appraise the taxpayer’s specific assignments of error. The taxpayer urges reversal for a number of reasons which may be grouped as follows: (1) failure of the Tax Court to give consideration to the undisputed evidence that proved an intention to create a debt; (2) the Tax Court’s selection and emphasis of the factors which it deemed decisive; and (3) the Tax Court’s finding that the advances were not made to accomplish any business purpose of the taxpayer. The fact that the advances were entered as loans on the books kept by the taxpayer and Savage Construction Co. does not conclusively prove they were loans. John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 698, 66 S.Ct. 299, 90 L.Ed. 278 (1946). Nor was the Tax Court required to accept the testimony of the taxpayer’s witnesses that it was the intention of the parties to create a debtor-creditor relationship. Berthold v. Commissioner of Internal Revenue, 404 F.2d 119, 122 (6th Cir. 1968). Intention to create a debt cannot be so readily proved. Generally it depends upon whether contemporaneous facts, not testimony given years later, establish an unconditional obligation to repay the advances. 5 Mertens, Law of Federal Income Taxation § 3.03 (1963). In litigated cases the issue often is not free from doubt, and decision must be based on analysis of the entire record. See American-La France-Foamite Corp. v. Commissioner of Internal Revenue, 284 F.2d 723, 724 (2d Cir. 1960). This is especially required when the nominal debtor and creditor are controlled by the samé person, and the arm’s length dealing that characterizes the money market is lacking. For this reason, the substance of the transaction is controlling, not the form in which it is cast or described. Gilbert v. Commissioner of Internal Revenue, 262 F.2d 512, 513 (2d Cir. 1959). And, contrary to the taxpayer’s claim, this is so even though the advances were evidenced by bookkeeping entries that" }, { "docid": "3975005", "title": "", "text": "It is further well established that on appeal this court will not disturb the conclusion of the trial court when reasonable conflicting inferences may be drawn and conclusions reached from an analysis and balancing of the several factors. Covey Investment Co. v. United States, 377 F.2d 403 (10th Cir.). The facts and circumstances must be developed in each case, and there is no single controlling condition or characteristic. John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 66 S.Ct. 299, 90 L.Ed. 278; United States v. In-termountain Furniture Manufacturing Co., 363 F.2d 554 (10th Cir.); Crawford Drug Stores v. United States, 220 F.2d 292 (10th Cir.); Arlington Park Jockey Club, Inc. v. Sauber, 262 F.2d 902 (7th Cir.). This case is different from the ordinary case in the fact that the parent corporation is exempt from federal income taxes and thereby one of the factors which sometimes motivates “loan” arrangements is absent. One of the strongest arguments advanced by appellant is based upon the case of Jack Daniel Distillery v. United States, 379 F.2d 569, 180 Ct.Cl. 308 (1967). This argument is basically that the funds secured by the taxpayer were in fact loans made to it by the public using its parent corporation, the National Farmers Union, merely as a conduit. The funds which the parent corporation provided to the taxpayer were secured by it through the sale of debentures to the public. The appellant urges that these loans were really made to the appellant, or could have been, and that the prospectus issued by the parent corporation indicated that the funds would be at least in part so used. The Court of Claims in the Jack Daniel Distillery case, supra, held that under the facts there present, the parent corporation borrowed funds to provide the Jack Daniel corporation with the needed money and in the borrowing the purpose was disclosed. The parent corporation there acted merely as an agency for the procurement of funds for the subsidiary. The Court of Claims held that the advances were loans and the interest was deductible. The court found that" }, { "docid": "6715684", "title": "", "text": "become a stockholder until May 1, 1951, almost three years after taxpayer was incorporated, and two and one-half years after Hewitt made the loan to taxpayer. . “There is no one characteristic, not even exclusion from management, which can be said to be decisive in the determination of whether the obligations are risk investments in the corporations or debts.” John Kelley Co. v. Commissioner, 1946, 326 U.S. 521, 530, 66 S.Ct. 299, 304, 90 L.Ed. 278. . See Root v. Commissioner, 9 Cir., 1955, 220 F.2d 240; Arlington Park Jockey Club, Inc. v. Sauber, 7 Cir., 1959, 262 F.2d 902; Thomas v. Commissioner, 1943, 2 T.C. 193. . Cf. Swoby Corporation v. Commissioner, 1947, 9 T.C. 887. . See Gilbert v. Commissioner, 2 Cir., 1957, 248 F.2d 399. . Compare Swoby Corporation v. Commissioner, supra, with New England Lime Company v. Commissioner, 1949, 13 T.C. 799. . Cf. Wilshire & Western Sandwiches v. Commissioner, supra, and Earle v. W. J. Jones & Son, 9 Cir., 1952, 200 F.2d 846. . Whether outside investors would make such advances is a factor in determining whether the advances are investments in or loans to the corporation. Gilbert v. Commissioner, supra; Arlington. Park Jockey Club, Inc. v. Sauber, supra; Matthiessen v. Commissioner, 1951, 16 T.C. 781. . “Whore purported loans are made in proportion to stockholdings the transaction is subject to close scrutiny, but this circumstance is certainly not in itself conclusive that the advances are capital contributions. At any rate, the advances here were not in direct proportion to stockholdings * * Earle v. W. J. Jones & Son, supra [200 F.2d 850]. See also Wilshire & Western Sandwiches v. Commissioner, supra, and Smith v. Commissioner, 1951, 17 T.C. 135. . For a discussion of the significance of this factor, see Gilbert v. Commissioner, supra. . See New England Lime Company v. Commissioner, 1949, 13 T.C. 799. . Wilshire & Western Sandwiches v. Commissioner, 9 Cir., 1949, 175 F.2d 718. The instant case is clearly distinguishable from cases where the acts of the lender indicate that the advance is to be at the" }, { "docid": "17309277", "title": "", "text": "of Spheeris and his witnesses in such circumstances, the Tax Court made its ultimate finding that the payments in question were not intended to be repaid as loans, but rather were dividends within the scope of the relevant statutes. In reviewing the Tax Court’s determination that the payments in question were taxable dividends, the problem before us involves “mixed questions of law and fact.” We may review the legal effect of the facts found by the trier of fact. Ortmayer v. C. I. R., 7 Cir., 1959, 265 F.2d 848, 854. The primary facts here are not in dispute, and we are not called upon to determine whether they find sufficient support in the record or are clearly erroneous as was the situation in Zeddies v. C. I. R., 7 Cir., 1959, 264 F.2d 120, 126. In cases involving payments to stockholders, subsequent to advances to their corporation, where it is disputed whether such advances were loans or capital contributions, we have held that the subjective intention of the parties is a major factor in determining the legal relationship for tax purposes. Jennings v. United States, 7 Cir., 1959, 272 F.2d 842. Ortmayer v. C. I. R., supra. Such intention may be ascertained from the testimony of witnesses and from objective manifestations of intent. No single indicium or criterion is conclusive. Arlington Park Jockey Club v. Sauber, 7 Cir., 1959, 262 F.2d 902. Similarly here, the legal relationship between the closely-held corporation and its stockholders as to these particular payments must be established by a consideration of all relevant factors indicating the true intent of the parties. After examination of the relevant facts, we agree with the Tax Court that the legal effect of the payments in question was to provide dividends to Spheeris. Numerous objective facts support this conclusion: none of the withdrawals was evidenced by promissory notes or secured by collateral; no interest was charged or paid; no dates for repayment were set and the single repayment came after the instant proceedings were initiated; no dividends were declared,- but withdrawals were taken from the closely-controlled corporation as Spheeris" }, { "docid": "23641241", "title": "", "text": "justify its holding that Benjamin’s advances to Gilbor, Inc. were for tax purposes capital contributions and not loans. The only question, however, now before this court is whether upon the law and the facts in the record the Tax Court was justified in concluding that the advances by Benjamin were not deductible as bad debts in his 1948 income tax return under section 23 (k) of the Internal Revenue Code of 1939. Conversely, the question is not whether all possible problems discussed in the previous opinion have been specifically dealt with by the Tax Court but only whether the findings as actually made are supported by the evidence and lead to the conclusion reached as a matter of law. Certain of the principles here applicable have been frequently stated by the courts. Whether advances to a corporation are contributions to capital or loans “is essentially a question of fact upon which the taxpayer has the burden of establishing his right to such deduction” (Matthiessen v. Commissioner of Internal Revenue, 2 Cir., 1952, 194 F.2d 659, 661). The form of the transaction is not controlling, but rather the substance. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; 1432 Broadway Corporation v. Commissioner of Internal Revenue, 1945, 4 T.C. 1158, affirmed per curiam 2 Cir., 1947, 160 F.2d 885. Where the loss sought to be regarded as a bad debt “is as a matter of substantial economic reality a loss of risk capital” (248 F.2d 399, 407), it will be disallowed. The term “substantial economic reality” is merely a way of expressing the fact that the determination whether the funds advanced are to be regarded as a “capital contribution” or “loan” must be made in the light of all the facts of the particular case. Rarely should any one element be determinative. See John Kelley Co. v. Commissioner, 326 U.S. 521, at page 530, 66 S.Ct. 299, 304, 90 L.Ed. 278, where the court said, “There is no one characteristic *" }, { "docid": "6715683", "title": "", "text": "an unfavorable situation to him because be was normally in from 50 to 63 per cent bracket, whereas the corporation would be normally for this operation perhaps in the neighborhood of 30 per cent, so it was unfavorable as far as taxes were concerned for Mr. Frary. “Q. How about any other factors other than taxes? A. Well, being a creditor he was in a position to avoid complications that would arise in regard to the titles on the leases and all these hidden claims that were there, and possibly royalty holders that hadn’t been paid. There were various considerations for getting a creditor’s position rather than a stockholder’s. “Q. In other' words, as a result it was your conclusion that his putting himself in a position of a creditor was advisable? \"A. T think it was. That is what I advised him.” ' . Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981. . In this connection it should be noted that Hewitt did not become a stockholder until May 1, 1951, almost three years after taxpayer was incorporated, and two and one-half years after Hewitt made the loan to taxpayer. . “There is no one characteristic, not even exclusion from management, which can be said to be decisive in the determination of whether the obligations are risk investments in the corporations or debts.” John Kelley Co. v. Commissioner, 1946, 326 U.S. 521, 530, 66 S.Ct. 299, 304, 90 L.Ed. 278. . See Root v. Commissioner, 9 Cir., 1955, 220 F.2d 240; Arlington Park Jockey Club, Inc. v. Sauber, 7 Cir., 1959, 262 F.2d 902; Thomas v. Commissioner, 1943, 2 T.C. 193. . Cf. Swoby Corporation v. Commissioner, 1947, 9 T.C. 887. . See Gilbert v. Commissioner, 2 Cir., 1957, 248 F.2d 399. . Compare Swoby Corporation v. Commissioner, supra, with New England Lime Company v. Commissioner, 1949, 13 T.C. 799. . Cf. Wilshire & Western Sandwiches v. Commissioner, supra, and Earle v. W. J. Jones & Son, 9 Cir., 1952, 200 F.2d 846. . Whether outside investors would make" }, { "docid": "16872204", "title": "", "text": "plaintiffs. The directors of plaintiffs decided not to continue the football operation. Plaintiffs concluded not to permit the Dons to go into bankruptcy as it was believed sports writers and others would then blame plaintiffs for the resulting collapse of the All America Football Conference. They were unable to find a purchaser who would operate the team and assume all future liability on contracts of players and coaches. On October 18, 1948, a partnership, formed by Lindheimer and members of his family, purchased from the Los Ange-les Dons, Inc. for the sum of $39,970.25 the franchise and all other assets of Los Angeles Dons, Inc. exclusive of cash and certain accounts receivable. The Los Angeles Dons, Inc. agreed to pay and satisfy all current liabilities accruing prior to the date of sale. To meet these obligations, the taxpayers each advanced $25,000.00 to the Los Angeles Dons, Inc. on October 20, 1948, and an additional $2500.00 each on December 20, 1948. These advances were not evidenced by notes nor were they interest bearing. However, again, on the books of plaintiffs and the Los Angeles Dons, Ine., they were listed as loans. The Los Angeles Dons paid off all its liabilities other than the sums which had been advanced by plaintiff corporations, and was dissolved in December, 1948. On dissolution, each plaintiff received $274.29. In its income tax return for the calendar year 1948, Washington Park deducted as a bad debt, the loss of $227,225.71 which it sustained in December, 1948, when the Los Angeles Dons, Inc. dissolved. Similarly, in its return for the fiscal year ending April 30, 1949, Arlington deducted as a bad debt the loss of $227,225.71 which it likewise sustained in December, 1948. In determining whether the cash payments made by plaintiffs to the Los Angeles Dons, Inc. represented loans or additional capital investment, no single test can provide the answer. John Kelley Co. v. Commissioner, 326 U.S. 521, 530, 66 S.Ct. 299, 90 L.Ed. 278; Commissioner of Internal Revenue v. Meridian & Thirteenth Realty Co., 7 Cir., 132 F.2d 182. The burden of establishing that the advances" } ]

[ { "docid": "22406224", "title": "", "text": "has been unreasonably limited. E. g., Alford v. United States, supra; United States v. Masino, 2 Cir. 1960, 275 F.2d 129; United States v. Lester, 2 Cir. 1957, 248 F.2d 239. However, reversal need not result from every limitation of permissible cross-examination and a witness’ testimony may, in some cases, be used against a defendant, even though the witness invokes his privilege against self-incrimination during cross-examination. In determining whether the testimony of a witness who invokes the privilege against self-incrimination during cross-examination may be used against the defendant, a distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination. Where the privilege has been invoked as to purely collateral matters, there is little danger of prejudice to the defendant and, therefore, the witness’s testimony may be used against him. United States v. Kravitz, 3 Cir. 1960, 281 F.2d 581; Hamer v. United States, 9 Cir. 1958, 259 F.2d 274; United States v. Toner, 3 Cir. 1949, 173 F.2d 140. On the other hand, if the witness by invoking the privilege precludes inquiry into the details of his direct testimony, there may be a substantial danger of prejudice because the defense is deprived of the right to test the truth of his direct testimony and, therefore, that . witness’s testimony should be stricken in whole or in part, Montgomery v. United States, 5 Cir. 1953, 203 F.2d 887; cf. United States v. Andolschek, 2 Cir. 1944, 142 F.2d 503; Stephan v. United States, 6 Cir. 1943, 133 F.2d 87; United States v. Keown, W.D.Ky.1937, 19 F.Supp. 639. The district court was not in error in refusing to strike Ohrynowicz’ testimony. After admitting to a substantial criminal record, Ohrynowicz invoked the privilege against self-incrimination when asked whether he committed other crimes in the past and whether he was guilty of certain crimes with which he was then charged in the state courts." } ]

[ { "docid": "4432019", "title": "", "text": "been caused defendant as a result. See, e. g., United States v. Burgos, 269 F.2d 763, 767 (2d Cir. 1959), cert. denied, 362 U.S. 942, 80 S.Ct. 808, 4 L.Ed.2d 771 (1960); United States v. Albanese, 224 F.2d 879, 882 (2d Cir.), cert. denied, 350 U.S. 845, 76 S.Ct. 87, 100 L.Ed. 753 (1955). In the present case, defendant has failed to demonstrate the existence of the requisite prejudice. Birrell claims that if he had had notice of the government’s intention to stand on the inference that Birrell himself mailed the stock certificates to the bank, he would have cross-examined government witnesses in an attempt to refute this inference. We fail to see, however, how defendant’s cross-examination of witnesses would have varied if he had been made aware of this method of proof originally. Absent a showing by defendant of how his questioning would have differed, we must conclude that he has failed to establish the existence of the necessary prejudice. III. Admission of Evidence of Similar Acts: Birrell contends that admission into evidence of testimony concerning the so-called Durham-Schneider and Lieberman frauds were irrelevant and unduly prejudicial. The evidence was admitted by the trial court as evidence of similar acts tending to establish Birrell’s criminal intent. The Lieberman fraud provided the basis for the third count, charging wire fraud, upon which Birrell was indicted, but which was subsequently dismissed by the trial court. According to the government’s evidence, in March, 1966, Birrell attempted to interest Jesse Livermore, husband of Patricia Livermore, in purchasing Drug Products stock. Though Livermore himself had no interest in the stock, he agreed to discuss the matter with his friends, and subsequently interested Robert Durham, a friend, and Fritzi Schneider, Livermore’s sister-in-law, in making purchases. Later that month Livermore delivered to Birrell two $1,-000 checks payable to C. Whitney, in payment for the shares purchased by Durham and Schneider. Birrell then obtained from Re over 200,000 shares ostensibly for the purpose of showing them to prospective purchasers. Birrell turned over 20,000 shares to Livermore for Durham and Schneider, though Re had not authorized him to" }, { "docid": "1859777", "title": "", "text": "Zapata, 871 F.2d 616, 623 (7th Cir.1989). When determining the constitutional implications of a witness’s refusal to answer questions, courts have properly drawn a distinction between cross-examination questions that are directly related to the witness’s direct testimony and cross-examination questions that are merely collateral to the witness’s direct testimony, such as “credibility.” Zapata, 871 F.2d at 624. The four questions Marks refused to answer clearly dealt with issues collateral to the culpability of McClurge and Car-lisle. The trial transcript demonstrates that Marks was asked whether he had ever seen Eiland commit murder, whether he had ever kidnapped anyone else with Eiland, and (twice) whether he had ever covered up any of Eiland’s crimes. (Tr. at 967, 975, 988.) Marks had already testified on direct about his relationship with Eiland (Tr. at 706-18, 799), but had limited that discussion to the time and events surrounding the kidnapping referred to herein. (Id.) Thus, questions surrounding Marks’s relationship with Eiland beyond that time period clearly were aimed at impugning Marks’s credibility, an attempt which must cease at the threshold of Marks’s own Fifth Amendment rights. The commentary to Rule 608(b) of the Federal Rules of Evidence states that the Rule constitutes a rejection of the doctrine ... that any past criminal act relevant to credibility may be inquired into on cross-examination, in apparent disregard of the privilege against self-incrimination. While it is clear that an ordinary witness cannot make a partial disclosure of incriminating matter and then invoke the privilege on cross-examination, no tenable contention can be made that merely by testifying he waives his right to foreclose inquiry on cross-examination into criminal activities for the purpose of attacking his credibility. So to hold would reduce the privilege to a nullity. Fed.R.Evid. 608(b), Comm. Notes. Courts from other circuits have reached the same conclusion when presented with similar facts. See, e.g., United States v. Brooks, 82 F.3d 50, 54 (2d Cir.1996) (holding that a witness’s invocation of his Fifth Amendment privilege on a “collateral” matter did not violate defendant’s Sixth Amendment right to confrontation); United States v. Berrio-Londono, 946 F.2d 158, 158-59 (1st" }, { "docid": "8426630", "title": "", "text": "district court should have instructed that the testimony regarding Newman was no proof whatsoever of Gaea’s guilt and that the testimony preferred should be disregarded completely in determining the guilt or innocence of Gaea. See United States v. Aronson, 319 F.2d 48, 52 (2d Cir. 1963). C. Nee’s Assertion of His Fifth Amendment Privilege On cross-examination, witness Nee frequently asserted his Fifth Amendment privilege. The chart below outlines the context in which these assertions were made: page question purpose of question 1) Tr. 195-197 Nee was questioned as to how he had tapped his ex-girlfriend's phone. to show that Gaea did not participate in all tappings performed by Nee. 2) Tr. 199 Nee was questioned as to whether he had committed any crimes other than those about which he testified on direct examination. to impeach Nee's credibility. 3) Tr. 255 Nee was questioned as to whether he had received any money from wiretaps in 1970. to impeach credibility. 4) Tr. 257, 258 Nee was questioned as to whether he had tapped the phones of: a) members of the underworld, and b) a man by the name of Lou Posick. to show that Gaea did not participate In all tappings performed by Nee. On each of these instances, the trial court refused to compel Nee to answer defense counsel’s inquiries. Gaea contends herein that Nee’s utilization of the privilege against self-incrimination deprived him (Gaea) of his Sixth Amendment right to confront witnesses and his Fifth Amendment right to a fair trial. The Sixth Amendment right of confrontation requires appellate courts to reverse convictions where it appears that the cross-examination of government witnesses has been unreasonably limited. See United States v. Zambrano, 421 F.2d 761 (3d Cir. 1970). However, courts have recognized that in certain circumstances, reversal is not required when a government witness asserts the Fifth Amendment during cross-examination. See, e. g., United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert, denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed. 2d 55 (1963); United States v. Kravitz, 281 F.2d 581, 588 (3d Cir. 1960); United States v. Smith, 342" }, { "docid": "4432026", "title": "", "text": "Re’s memorandum had recorded the proper date. Defense counsel strenuously argued the inconsistency to the jury, and the jury apparently concluded that all that was involved was faulty memory on a comparatively insignificant point. This was a legitimate question for the jury, and we cannot say that the inconsistency created a reasonable doubt as to defendant’s guilt as a matter of law. V. Coercion of the Supplemental Charge: The argument is made that the trial judge’s supplemental charge to the jury after the jury had indicated it was deadlocked unduly coerced the jury into reaching a verdict of guilty. The vote at that time was four votes for guilty, eight for not guilty. In his supplemental charge to the jury, the trial court stated: “I am frank to say that I see no reason why a verdict cannot be reached.” Two and one-half hours later, the jury returned a guilty verdict. This type of charge, called an “Allen” charge [see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)], has consistently been upheld by this court. See, e. g., United States v. Bowles, 428 F.2d 592, 595 (2d Cir. 1970); United States v. Barash, 412 F.2d 26, 32 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969). In any case, it appears that if any coercive effect would have resulted from the trial judge’s Allen charge, it would have been aimed towards those who had been voting for a guilty verdict, since at the time the vote was strongly in favor of acquittal. VI. Hearing on Indictment: Birrell claims that in this case he is entitled to a hearing to determine whether the specific terms of his indictment were considered by the grand jury. Birrell argues that a hearing is called for, since the government has refused to deny categorically the assertion that the grand jury did not actually pass on the terms of the indictment, since there were amendments made to the bill of particulars by the government, and since there existed what Birrell calls “striking inconsistencies” between the" }, { "docid": "4432025", "title": "", "text": "had not been a third count, there would be no question of the right to introduce evidence of the Lieberman fraud as similar acts. There was no error in admitting evidence of either fraud. IV. Insufficiency of the Evidence: Birrell contends that an inconsistency in the testimony of Jesse Livermore and Re created a reasonable doubt of guilt as a matter of law, and thus dictated acquittal. Livermore testified that he delivered the 20,000 shares of old Begley stock, given originally to Schneider and Durham, on September 9, 1966. These shares were returned to Birrell because Re had been insisting that Birrell return them to him. According to a memorandum of Re, however, as of September 6, 1966, only 10,-050 shares were missing. Hence an inconsistency does arise, though in reference only to the similar acts of fraud, and not to the fraud under count two, the subject of the trial. However, the inconsistency was minor, and the jury could have believed that Livermore was mistaken about the date of redelivery to Birrell, and that Re’s memorandum had recorded the proper date. Defense counsel strenuously argued the inconsistency to the jury, and the jury apparently concluded that all that was involved was faulty memory on a comparatively insignificant point. This was a legitimate question for the jury, and we cannot say that the inconsistency created a reasonable doubt as to defendant’s guilt as a matter of law. V. Coercion of the Supplemental Charge: The argument is made that the trial judge’s supplemental charge to the jury after the jury had indicated it was deadlocked unduly coerced the jury into reaching a verdict of guilty. The vote at that time was four votes for guilty, eight for not guilty. In his supplemental charge to the jury, the trial court stated: “I am frank to say that I see no reason why a verdict cannot be reached.” Two and one-half hours later, the jury returned a guilty verdict. This type of charge, called an “Allen” charge [see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)], has" }, { "docid": "4432024", "title": "", "text": "telling counsel that “there is no issue about fraudulent stock sales here and there is no 10b-5 issue.” 437 F.2d at 866. Nevertheless, the trial court read to the jury in his charge seven paragraphs of the indictment, including much of the stricken material, to illustrate the means used to carry out the conspiracy. This court, in commenting on that practice, noted: “Thus it would appear that the jury had before it the very material purportedly taken out of the case and upon which they could place a criminal connotation.” 437 F.2d at 868. It is true that in this case, the jury was permitted to hear evidence on a count already dismissed. However, here the court dismissed the Lieberman fraud count solely for failure to establish connection of the telephone call with the fraud. In Wolfson, on the other hand, the count was dismissed for lack of substantive proof of criminal conduct, but the evidence was before the jury without sufficient instruction that the conduct, non-disclosure, was not in itself criminal. Moreover, if there had not been a third count, there would be no question of the right to introduce evidence of the Lieberman fraud as similar acts. There was no error in admitting evidence of either fraud. IV. Insufficiency of the Evidence: Birrell contends that an inconsistency in the testimony of Jesse Livermore and Re created a reasonable doubt of guilt as a matter of law, and thus dictated acquittal. Livermore testified that he delivered the 20,000 shares of old Begley stock, given originally to Schneider and Durham, on September 9, 1966. These shares were returned to Birrell because Re had been insisting that Birrell return them to him. According to a memorandum of Re, however, as of September 6, 1966, only 10,-050 shares were missing. Hence an inconsistency does arise, though in reference only to the similar acts of fraud, and not to the fraud under count two, the subject of the trial. However, the inconsistency was minor, and the jury could have believed that Livermore was mistaken about the date of redelivery to Birrell, and that" }, { "docid": "4432012", "title": "", "text": "J. JOSEPH SMITH, Circuit Judge: Defendant Lowell M. Birrell appeals from a judgment of conviction entered after a jury trial in the United States District Court for the Southern District of New York (Frederick van Pelt Bryan, Judge). He was found guilty of transmitting in interstate commerce wire communications for the purpose of executing a fraudulent scheme, in violation of 18 U.S.C. § 1343. Defendant was sentenced to two years imprisonment. He had also been indicted on one count of conspiracy to commit wire fraud and on another count of wire fraud, but a verdict of acquittal was directed on both counts by the trial court. We find no error and affirm the judgment. The thrust of the government’s charge against Birrell was that he had “issued” unauthorized stock certificates in a virtually defunct public corporation, which he caused to be pledged as collateral for a bank loan, misrepresenting the certificates as genuine. According to the government’s case at trial, Birrell in 1965 became interested in acquisition of Drug Products Company, Inc., an inactive manufacturer of drug products. At the time there were 1,000,000 shares outstanding, 735,662 owned by Hugh Begley and the rest owned by members of the general public. Birrell allegedly approached Gerard A. Re and his son, Gerard F. Re (“Re”) and the three agreed to purchase the Begley shares. The group enlisted Charles Dressen, baseball manager and friend of the Res, to make the purchase. Re arranged an advance of funds from his cousin, Peter Borre, to Dressen totaling $35,000, most of which was used to purchase the shares. Dressen delivered the shares to Re. In April of 1966, three months after the acquisition, Birrell went to the company’s offices and obtained a Drug Products stock book containing unissued certificates. Birrell desired to obtain a bank loan, using 100,000 shares as collateral. He had Patricia Livermore, a friend, contact Lawrence Davis, a vice-president of the First National Bank of Cincinnati, who agreed to lend her $5,-000 on the security of 100,000 shares of Drug Products and 100 shares of anoth er company. Mrs. Livermore agreed to" }, { "docid": "4432017", "title": "", "text": "actions. Nor is it necessary to accept the government’s position that the mere fact of Birrell’s participation in the four-man joint venture agreement does not automatically entitle him to one-quarter of the shares unless the agreement so dictates. The simple fact of the matter is that the questions posed to Re bore no relevance whatsoever to the theory Birrell now argues was the justification for posing the questions. Whether the money advanced to Dressen came from Borre or from Re in no way determines whether Birrell had a legitimate legal right to the shares. See, United States v. Car- dillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, Margolis v. United States, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963), holding that a refusal by the trial court to strike the testimony of a witness who on cross-examination took his Fifth Amendment privilege when asked about collateral matters was not error. Since the most that the answers to the defense questions could have produced was impeachment of credibility on matters not directly in issue at trial, the questions concerned collateral matters, and there was no error in excluding them. It is true that the federal conviction will be reversed if the right of the defendant to cross-examine is unreasonably limited, see, e. g., United States v. Masino, 275 F.2d 129 (2d Cir. 1960), but the minimal prejudice possibly caused to defendant in this case would not constitute grounds for reversal, even if we found error in the ruling. II. Variance of Proof From, Bill of Particulars : The government indicated in its bill of particulars that it would show at trial that the person who transmitted the stock certificates to the bank in Cincinnati was Patricia Livermore. At trial, the government introduced no direct proof on the issue, and the only inference established was that Birrell himself had caused the stock certificates to be transmitted to the bank. Thus it appears that there was a variance from the bill of particulars. A variance from the bill of particulars, however, will invalidate a conviction only if real prejudice has" }, { "docid": "4432022", "title": "", "text": "a larger continuing plan or design. United States v. Freedman, 445 F.2d 1220 (2d Cir. 1971). C. McCormick, Law of Evidence, § 164 (1964). As to the first category, “[t]his inference does not require that the other representations should have been identical in purport nor made under precisely like circumstances.” Id. In the present case, given the apparent existence of alternative defense theories, both categories are relevant. If the defense contention that Birrell knew nothing of any wrongdoing and it was only Whitney who was involved in any criminal activity is considered, the second justification for the admission of evidence of similar acts is relevant. If, on the other hand, we take into account the defense theory, argued on appeal, that Birrell was in reality owner of one-quarter of the shares by virtue of his participation in the four-man joint venture arrangement, and thus was acting in totally good faith in using the shares as collateral for the loan, then the former justification serves as a proper basis for admitting the evidence of similar acts. Contrary to defendant's contentions, these transactions were not wholly irrelevant. A jury could properly conclude that they evidenced both a common plan to defraud individuals by means of the transfer of unissued Drug Products stock, and a criminal intent to defraud on Birrell’s part. Birrell further argues that the similar acts are inadmissible, since the government failed to prove even the fraudulent act under indictment, namely Birrell’s transfer of the shares to the Cincinnati bank. It is clear, however, that the jury could properly have inferred that it was Birrell himself who mailed the stock certificates to the bank. There was evidence that Birrell had arranged for the loan through the Livermores, that Mrs. Livermore had requested the loan, and that the shares were received by Mr. Davis at the bank. In arguing against admission of the similar acts evidence of the Lieberman fraud, Birrell relies heavily upon this court’s decision in United States v. Wolfson, 437 F.2d 862 (2d Cir. 1970). There the trial court had dismissed a count for violation of Rule 10b-5," }, { "docid": "6622273", "title": "", "text": "This prediction proved correct as Vizzini initially invoked the privilege in response to such questions. However, before the end of his testimony, he reversed himself and answered all questions, denying that he had been involved in the murders. The government stipulated before the jury that Vizzini had previously claimed to have committed the homicides and Vizzini attributed the apparent inconsistency to a misunderstanding. His denial thus raised a credibility issue for the jury. The appellants now argue that Vizzini should not have been permitted in the first instance to invoke his Fifth Amendment right because his prior statements had waived it. See Klein v. Harris, 667 F.2d 274, 287-88 (2d Cir.1981). Whether he had waived the privilege or not, no prejudice to the appellants resulted since Vizzini was fully cross-examined on the subject of the homicides. Nor did the government knowingly or recklessly allow perjured testimony to stand unimpeached, for it stipulated that he had previously admitted to the murders. Far from being prejudiced by this turn of events, the appellants referred to it repeatedly and used it in their summations to impeach Vizzini’s credibility. The second incident which appellants claim compels the striking of Vizzini’s testimony was his arrest on November 9, 1982, during the trial, for conspiring to impersonate a DEA agent. Vizzini, his direct and cross-examination as a government witness having been completed, allegedly stole a DEA agent’s identification and used it to enter and rob a narcotics dealer’s apartment in Queens. Vizzini was then called as a defense witness for further examination. The government refused to grant Vizzini use immunity, and he invoked his Fifth Amendment privilege in response to questions concerning his arrest. Appellants claim that Vizzini’s resort to the privilege deprived them of their Sixth Amendment right to cross-examine. Whether Vizzini’s assertion of the privilege calls for the striking of his earlier testimony depends upon whether the subject matter involved related to his earlier direct testimony or involved collateral matters going to his credibility. United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.) cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d" }, { "docid": "4432013", "title": "", "text": "of drug products. At the time there were 1,000,000 shares outstanding, 735,662 owned by Hugh Begley and the rest owned by members of the general public. Birrell allegedly approached Gerard A. Re and his son, Gerard F. Re (“Re”) and the three agreed to purchase the Begley shares. The group enlisted Charles Dressen, baseball manager and friend of the Res, to make the purchase. Re arranged an advance of funds from his cousin, Peter Borre, to Dressen totaling $35,000, most of which was used to purchase the shares. Dressen delivered the shares to Re. In April of 1966, three months after the acquisition, Birrell went to the company’s offices and obtained a Drug Products stock book containing unissued certificates. Birrell desired to obtain a bank loan, using 100,000 shares as collateral. He had Patricia Livermore, a friend, contact Lawrence Davis, a vice-president of the First National Bank of Cincinnati, who agreed to lend her $5,-000 on the security of 100,000 shares of Drug Products and 100 shares of anoth er company. Mrs. Livermore agreed to turn over the proceeds to Birrell. The bank received the 100,000 shares, which had been removed from the stock book taken by Birrell. The shares were made out in the name of C. Whitney, a former houseboy and handyman for Birrell who had become Birrell’s personal secretary. They had been endorsed in blank with the name Carter Whitney. The issuance of these shares had never been authorized, and therefore, argued the government, they were entirely worthless, a fact obviously not known by the bank which had accepted them as collateral. Davis wired the $5,000 to Mrs. Liver-more in New York. In its summation to the jury, the defense argued that Birrell was unaware of what Whitney was doing, and that any criminal activity had been performed solely by the latter. The only evidence introduced by the defense at trial was the stipulated testimony of Re’s attorney that he had seen documents indicating that $35,000 had been withdrawn from a Swiss bank account maintained by the Res about the time of Dressen’s purchase of the Begley" }, { "docid": "22761175", "title": "", "text": "cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). See Dunbar v. Harris, 612 F.2d 690, 692-693 (2d Cir. 1979). The Diecidue Court further held that, where the defense cross-examination is focused on undermining the credibility of the witness and the questions to which the witness declines to respond relate to collateral matters, refusal of the trial court to strike the direct testimony is not erroneous if the responses elicited would have been mere cumulative evidence concerning the witness’s credibility. Diecidue, supra, 603 F.2d at 552. Meinster argues first that the cross-examination did not concern collateral matters. Second, he argues that the questioning was not aimed solely at impeaching Keller but rather was also intended to support the defense strategy of shifting culpability away from Meinster toward Keller and his associates by demonstrating that the Government was minimizing Keller’s role in prior drug dealings and maximizing Meinster’s culpability. We agree with the Government that the questions posed by defense counsel related to collateral matters. Furthermore, we conclude that the questioning was essentially aimed at impeaching Keller’s credibility by emphasizing that he was a government witness who had received favorable deals from the prosecution and by showing that he had been extensively involved in drug dealings. The record reflects that defense counsel cross-examined Keller at considerable length concerning his prior dealings in marijuana. Appellants were not prejudiced by Keller’s exercise of his Fifth Amendment privilege. D. References to Polygraph Tests Meinster contends that the trial court erred by failing to declare a mistrial because Jiminez twice improperly offered, during cross-examination, to take a polygraph test. The trial court denied Meinster’s motion for a mistrial and instructed the jury to disregard any references to lie detector tests, stating that the results of such tests are inadmissible into evidence. Jiminez’s references to a polygraph test were improper, but they were not so prejudicial that the jury’s verdict was measurably affected. Any prejudice was cured by the instructions. E. Evidence of False Driver’s License Myers argues that the trial court committed reversible error by improperly permitting introduction of evidence that he" }, { "docid": "4432021", "title": "", "text": "make any sales. When Re demanded the shares, Birrell falsely represented to Livermore that there had been a refinancing of Drug Products and the certificates given to Durham and Schneider had to be replaced. Birrell then transferred to Liv-ermore for delivery to the two purchasers 20,000 shares of Drug Products stock in the name of C. Whitney, taken from the same stock book used in the bank fraud for which Birrell was convicted. The Lieberman fraud concerned the sale of 10,000 shares from the same stock book to one Anthony Lieberman. Birrell was paid the $2,500 purchase price in three installments with the last payment on April 27, 1966, according to testimony presented by the government. The shares involved in this transaction were also issued without authority and therefore were allegedly worthless. Evidence of similar acts in fraud cases may be introduced where knowledge or intent is at issue, to give rise to an inference of knowledge or intent, or where the actual making of the misrepresentations is at issue, to establish the existence of a larger continuing plan or design. United States v. Freedman, 445 F.2d 1220 (2d Cir. 1971). C. McCormick, Law of Evidence, § 164 (1964). As to the first category, “[t]his inference does not require that the other representations should have been identical in purport nor made under precisely like circumstances.” Id. In the present case, given the apparent existence of alternative defense theories, both categories are relevant. If the defense contention that Birrell knew nothing of any wrongdoing and it was only Whitney who was involved in any criminal activity is considered, the second justification for the admission of evidence of similar acts is relevant. If, on the other hand, we take into account the defense theory, argued on appeal, that Birrell was in reality owner of one-quarter of the shares by virtue of his participation in the four-man joint venture arrangement, and thus was acting in totally good faith in using the shares as collateral for the loan, then the former justification serves as a proper basis for admitting the evidence of similar acts." }, { "docid": "6550923", "title": "", "text": "to property, a misdemeanor under Illinois law. The Government attorney later elicited testimony from the defendant on cross-examination concerning the prior conviction. The trial court overruled defense counsel’s objection to the impeaching questions. We find no abuse of discretion in the court’s determination not to strike the exchange between Jansen and his attorney, the course of action suggested by the attorney at the conference. Counsel had posed the question at the beginning of the direct examination. The prosecutor was well into his cross-examination of Jansen when the discussion with the court took place. That conference lasted until the end of the court day and was resumed the following morning. Thus, the jury had heard the defendant’s denial a substantial period of time before the defense attorney proposed that the exchange be struck. The purported fact had been placed without question before the jury, and we are unaware of any basis for saying that it was error not to strike out the question and answer, particularly in the belated posture here involved. If counsel had listened to his own words and had sought immediately to correct them, the result might have differed. He apparently did neither. The Government acknowledges that, absent defense counsel’s question on direct, the prosecution would have been precluded from cross-examining Jansen about his prior misdemeanor conviction. It argues, however, that once the matter was raised, the prosecutor had a duty to impeach the veracity of defendant’s answer. The Government distinguishes this limited use of the misdemeanor conviction from an assault on Jansen’s general credibility as a witness. A defendant’s general credibility as a witness can be impeached only by a felony conviction. See United States v. Bishop, 457 F.2d 260, 262 (7th Cir. 1972). We also note that the court, in its charge, instructed the jury as to the limited purpose for which it was to consider the misdemeanor conviction. Because Jansen made his statement on direct examination, the present case falls outside the rule that a witness may not be impeached by contradiction as to collateral or irrelevant matters elicited on cross-examination, see, e. g., United" }, { "docid": "11996623", "title": "", "text": "The judge, having ascertained by an examination outside the presence of the jury that Birrell would claim his privilege against self-incrimination with respect to any question by the prosecution or the defense, ruled that the Government could not call him, cf. Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). He also stated that if the defendants chose to call Birrell, he would tell the jury that the Government had been precluded from calling him because of his declared refusal to testify, thereby eliminating any adverse inference the jury might otherwise draw from its failure. This in no way deprived the defendants of their right to call Birrell; it deprived them only of power to make or suggest an unfair argument if they did. The judge’s instructing defense counsel that they were not to argue dismissal of the conspiracy count was likewise proper in the interest of preventing confusion. Defendants’ numerous other objections to Judge Dimoek’s eminently fair conduct of the trial do not warrant discussion. The final complaint concerns the denial of a motion for a new trial on the ground of newly discovered evidence. Several months after the conviction Granello’s counsel wrote Birrell, stating Granello had advised him that monies received by him and Levine from Birrell represented not the purchase price of the stock but advances to them as agents for Pacheco in connection with Lomega’s acquisition of its assets. He inquired whether Birrell’s examination of the suppressed files had disclosed any records “which would clarify the true nature of such transactions between the two corporations and my client and his co-defendant.” The letter also asked whether Birrell had'found electric logs of the Pacheco wells. Birrell promptly gave an affimative answer as to the logs; in response to the more important question, he enclosed a copy he had made of minutes of a Lomega board meeting held September 20, 1956. These recited that the president of Lomega had “prearranged” the acquisition of the assets of Pacheco by a subsidiary as suggested at a prior Lomega board meeting in May and, to that" }, { "docid": "4432016", "title": "", "text": "Beg-ley shares, but rather his own, out of his Swiss bank account. Why such a showing would be at all helpful to Bir-rell, save perhaps for its impeachment value since Re had denied that his funds were involved in the purchase, is unclear. Birrell argues that the defense’s contention was that Whitney or Birrell through Whitney in fact owned 25% of the former Begley stock by virtue of the four-man joint venture agreement between the Res, Dressen and Whitney, entered into in contemplation of obtaining the Begley stock. Since Birrell was entitled to one-quarter of the shares, the loan collateral was not worthless, the argument maintains. The most that could be said is that the shares were slightly irregular, since they had not been officially authorized at the time. This, Bir-rell contends, was only a minor technicality. We need not consider the government’s suggestion that this theory was never presented at trial and indeed was inconsistent with the defense claim that Whitney was alone responsible for any criminal activity, Birrell being totally unaware of his actions. Nor is it necessary to accept the government’s position that the mere fact of Birrell’s participation in the four-man joint venture agreement does not automatically entitle him to one-quarter of the shares unless the agreement so dictates. The simple fact of the matter is that the questions posed to Re bore no relevance whatsoever to the theory Birrell now argues was the justification for posing the questions. Whether the money advanced to Dressen came from Borre or from Re in no way determines whether Birrell had a legitimate legal right to the shares. See, United States v. Car- dillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, Margolis v. United States, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963), holding that a refusal by the trial court to strike the testimony of a witness who on cross-examination took his Fifth Amendment privilege when asked about collateral matters was not error. Since the most that the answers to the defense questions could have produced was impeachment of credibility on matters not directly in" }, { "docid": "4432015", "title": "", "text": "shares. On appeal, Birrell alleges the commission of a number of errors at trial. I. Right of Confrontation: Birrell contends that he was denied his Sixth Amendment right of confrontation when Re refused to answer questions on cross-examination on the basis of his Fifth Amendment privilege against self-incrimination. Re had appeared as a witness for the prosecution, testifying that Birrell owned none of the stock of Drug Products and that it was all owned by Dressen, who had received his money from Re’s cousin, Borre. On cross-examination, the defense attempted to ask Re about his Swiss bank account. Specifically, the questions were the following : “Did [the services rendered by Borre] include maintaining or taking care of any European bank accounts for you?” “Is it not true, sir, that * * * in January of 1966, you had more than $1,000,000 in a Swiss bank?” “Does Dr. Lanz take care of your Swiss banking accounts ?” The defense was apparently attempting to establish that it was not Borre’s money given to Dressen to purchase the Beg-ley shares, but rather his own, out of his Swiss bank account. Why such a showing would be at all helpful to Bir-rell, save perhaps for its impeachment value since Re had denied that his funds were involved in the purchase, is unclear. Birrell argues that the defense’s contention was that Whitney or Birrell through Whitney in fact owned 25% of the former Begley stock by virtue of the four-man joint venture agreement between the Res, Dressen and Whitney, entered into in contemplation of obtaining the Begley stock. Since Birrell was entitled to one-quarter of the shares, the loan collateral was not worthless, the argument maintains. The most that could be said is that the shares were slightly irregular, since they had not been officially authorized at the time. This, Bir-rell contends, was only a minor technicality. We need not consider the government’s suggestion that this theory was never presented at trial and indeed was inconsistent with the defense claim that Whitney was alone responsible for any criminal activity, Birrell being totally unaware of his" }, { "docid": "4432018", "title": "", "text": "issue at trial, the questions concerned collateral matters, and there was no error in excluding them. It is true that the federal conviction will be reversed if the right of the defendant to cross-examine is unreasonably limited, see, e. g., United States v. Masino, 275 F.2d 129 (2d Cir. 1960), but the minimal prejudice possibly caused to defendant in this case would not constitute grounds for reversal, even if we found error in the ruling. II. Variance of Proof From, Bill of Particulars : The government indicated in its bill of particulars that it would show at trial that the person who transmitted the stock certificates to the bank in Cincinnati was Patricia Livermore. At trial, the government introduced no direct proof on the issue, and the only inference established was that Birrell himself had caused the stock certificates to be transmitted to the bank. Thus it appears that there was a variance from the bill of particulars. A variance from the bill of particulars, however, will invalidate a conviction only if real prejudice has been caused defendant as a result. See, e. g., United States v. Burgos, 269 F.2d 763, 767 (2d Cir. 1959), cert. denied, 362 U.S. 942, 80 S.Ct. 808, 4 L.Ed.2d 771 (1960); United States v. Albanese, 224 F.2d 879, 882 (2d Cir.), cert. denied, 350 U.S. 845, 76 S.Ct. 87, 100 L.Ed. 753 (1955). In the present case, defendant has failed to demonstrate the existence of the requisite prejudice. Birrell claims that if he had had notice of the government’s intention to stand on the inference that Birrell himself mailed the stock certificates to the bank, he would have cross-examined government witnesses in an attempt to refute this inference. We fail to see, however, how defendant’s cross-examination of witnesses would have varied if he had been made aware of this method of proof originally. Absent a showing by defendant of how his questioning would have differed, we must conclude that he has failed to establish the existence of the necessary prejudice. III. Admission of Evidence of Similar Acts: Birrell contends that admission into evidence of" }, { "docid": "4432014", "title": "", "text": "turn over the proceeds to Birrell. The bank received the 100,000 shares, which had been removed from the stock book taken by Birrell. The shares were made out in the name of C. Whitney, a former houseboy and handyman for Birrell who had become Birrell’s personal secretary. They had been endorsed in blank with the name Carter Whitney. The issuance of these shares had never been authorized, and therefore, argued the government, they were entirely worthless, a fact obviously not known by the bank which had accepted them as collateral. Davis wired the $5,000 to Mrs. Liver-more in New York. In its summation to the jury, the defense argued that Birrell was unaware of what Whitney was doing, and that any criminal activity had been performed solely by the latter. The only evidence introduced by the defense at trial was the stipulated testimony of Re’s attorney that he had seen documents indicating that $35,000 had been withdrawn from a Swiss bank account maintained by the Res about the time of Dressen’s purchase of the Begley shares. On appeal, Birrell alleges the commission of a number of errors at trial. I. Right of Confrontation: Birrell contends that he was denied his Sixth Amendment right of confrontation when Re refused to answer questions on cross-examination on the basis of his Fifth Amendment privilege against self-incrimination. Re had appeared as a witness for the prosecution, testifying that Birrell owned none of the stock of Drug Products and that it was all owned by Dressen, who had received his money from Re’s cousin, Borre. On cross-examination, the defense attempted to ask Re about his Swiss bank account. Specifically, the questions were the following : “Did [the services rendered by Borre] include maintaining or taking care of any European bank accounts for you?” “Is it not true, sir, that * * * in January of 1966, you had more than $1,000,000 in a Swiss bank?” “Does Dr. Lanz take care of your Swiss banking accounts ?” The defense was apparently attempting to establish that it was not Borre’s money given to Dressen to purchase the" }, { "docid": "23472682", "title": "", "text": "ground that the Government failed to prove that they had anything to do with the sale alleged. In a similar vein, Bat-kin contends that there was no proof that the 200 shares described in count three were in fact “control” shares; in addition he argues that he was denied a fair trial due to the admission of incul-patory testimony of the Res and Grande before the S. E. C. The “DeRisi” Records Evidence of cash payments in substantial amounts was an important element in the Government’s proof that appellants Re, Sr., Re, Jr., Batkin and other defendants were intimately allied with Birrell in the unlawful distribution and market manipulation. Although there was much additional proof to the same effect, the so-called “DeRisi” records were an important factor in establishing Birrell’s payments to the alleged co-conspirators. Appellants claim that these records constituted hearsay and that their introduction into evidence was reversible error. Joseph DeRisi was employed by Birrell as his bookkeeper from 1952 until 1958. At all times he took his orders directly from Birrell and worked without other supervision. He was chiefly concerned with keeping the books related to various corporations and personal bank accounts, all of which were controlled by Birrell. At trial, the Government’s proof focused on the cash disbursement books of four of these accounts, those entitled “Birrell & Larson,” “Harry Workman,” “Ernest Espinosa” and “A. Hector Rivero.” In connection with the many checks drawn on these accounts payable only to “cash,” DeRisi’s records showed notations which purported to identify the recipients. When totalled it was revealed that $239,-180 had been paid to the Res while $246,-800 was distributed to “Sinclair,” “Yaffe” and “Bob,” who, the jury was entitled to infer, was actually appellant Batkin. The information which eventually found its way into the records kept by DeRisi came from the checkbook stubs of each account. Carter Whitney, Bir-rell’s messenger and “Man Friday,” defendant Verna Skoglund, Birrell’s secretary, DeRisi and perhaps Mrs. Skog-lund’s replacement, Miss Miller, always at Birrell’s direction, wrote the checks. Birrell identified the recipient either when the cheek was drawn or when the cash" } ]

[ { "docid": "23299838", "title": "", "text": "said, and I think that’s ultimately, most ultimately it. So I find that the four point aggravating [sic] role enhancement applies. Abies now appeals from his 87-month prison sentence on the basis that the district court erroneously applied the § 3Bl.l(a) enhancement. Abies contends that while there is ample evidence that he managed the bingo hall at Castle Bingo, there is no evidence that Lamkin, Baxter, Bennet, or Cosgrove were under his direction or control. He maintains that the evidence demonstrates only that he frequently suggested improvements to the business, but provided no leadership to others working at the bingo hall. When a defendant contests the applicability of an enhancement provision, the government must establish the enhancement factors by a preponderance of the evidence. See United States v. Feinman, 930 F.2d 495, 500 (6th Cir.1991). A district court’s determination that § 3B1.1 is indeed applicable “is a factual finding subject to the ‘clearly erroneous’ standard of review.” Id. A factual finding is clearly erroneous when, though there is evidence to support that finding, “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). On the other hand, if a district court’s account of the evidence is plausiblé in light of the record viewed in its entirety, the reviewing court “may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). The district court’s choice between two permissible views of the evidence cannot, therefore, be clearly erroneous. Id. at 574,105 S.Ct. 1504. Accordingly, when a factual finding is based upon a decision “to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Id." } ]

[ { "docid": "22804485", "title": "", "text": "that we review under the clearly erroneous standard. United States v. Sandridge, 385 F.3d 1032, 1037 (6th Cir.2004). If the exact amount of drugs is undetermined, “an estimate will suffice, but ... a preponderance of the evidence must support the estimate.” United States v. Walton, 908 F.2d 1289, 1302 (6th Cir.1990); United States v. Hernandez, 227 F.3d 686, 699 (6th Cir.2000) (“Approximations are completely appropriate.”). A district court may not “hold a defendant responsible for a specific quantity of drugs unless the court can conclude the defendant is more likely than not actually responsible for a quantity greater than or equal to the quantity for which the defendant is being held responsible.” Walton, 908 F.2d at 1302 (emphasis in original); see also Sandridge, 385 F.3d at 1037 (holding that “the court may make an estimate supported by competent evidence, but that the evidence supporting the estimate must have a minimal level of reliability beyond mere allegation, and the court should err on the side of caution in making its estimate” (citation and internal quotation marks omitted)). The district court’s estimate may be based upon physical evidence (such as seized drugs) or testimonial evidence. United States v. Pruitt, 156 F.3d 638, 647 (6th Cir.1998). “[T]estimonial evidence from a coconspirator may be sufficient to determine the amount of drugs for which another coconspirator should be held accountable.” United States v. Swanberg, 370 F.3d 622, 625 (6th Cir.2004). We “afford the district court’s credibility determinations regarding witness testimony great deference.” United States v. Esteppe, 483 F.3d 447, 452 (6th Cir.2007). Clear error will not be found where two permissible views of the evidence exist, Anderson v. City of Bessemer, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), and a district court’s approximation of drug quantity is not clearly erroneous if it is supported by competent evidence in the record, United States v. Brannon, 7 F.3d 516, 520 (6th Cir.1993). 1. Docherty: Responsibility for 100,-000 Ecstacy pills At Docherty’s resentencing, the district court found that she was responsible for at least 100,000 pills. Docherty challenges this finding on the ground that" }, { "docid": "22248540", "title": "", "text": "assessment of Edwin’s testimony. In discounting his testimony, the majority relies1 not on solid extrinsic evidence, but instead, on testimony by other witnesses. Such testimony was oftentimes hearsay, conjectural, or directly refuted by other testimony. Thus, the alleged victim’s testimony was not contradicted by any extrinsic evidence; instead, the majority chooses to credit the testimony by other witnesses over the testimony by the victim. This choice, however, is not for us to make. As held by the Supreme Court in Anderson, “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” 470 U.S. at 575, 105 S.Ct. 1504. Here, there was no forensic evidence or trustworthy eyewitness accounts establishing that Doe had in fact assaulted Edwin. Indeed, there was no admissible evidence that corroborated the testimony by former pi'osecutors in the Westchester District Attorneys Office (“D.A.’s Office”), aside from handwritten notes created by the prosecutor herself. Therefore, pursuant to Anderson, the district court’s ruling should not be disturbed unless there is extraordinary evidence that directly undermines the district court’s assessment of the victim’s testimony. No such evidence exists in this case. (b) Edwin’s Testimony At the hearing before the district court, Edwin testified that he was 22 years old, worked for Wal-Mart, had one son, and resided in upstate New York (Arkville). Regarding the events at issue, Edwin stated that he never engaged in sexual relations with Doe, forcible or otherwise, and that he was never alone with Doe when he went to see him. He also stated that Doe never refused to take him home or put his hands on him. He testified unequivocally that, although “I was young at the time ... I knew right from wrong. And I wasn’t going to let a man or any other man try to touch me.” Tr. at 16. ■ He also testified that he never told investigators from the" }, { "docid": "22127247", "title": "", "text": "whether the transaction involved powder or crack cocaine. The court did not, however, conclude that McGraw was lying about the events. Rather, the district court determined that McGraw was a “very significant witness.” J.A. at 663. It found his testimony credible, noting that McGraw identified various people that he purchased drugs from. He didn’t lay all of the blame on Tony Latham by any means. I can’t see any reason why he would have made up the part about Tony. It’s consistent with the testimony of other witnesses about Tony’s involvement in distributing drugs for Larry. It’s consistent with what we know about the facts that Tony Latham did distribute drugs from the barbershop or from the pizza shop next door. J.A. at 708-09. McGraw’s testimony is consistent with other testimony describing Anthony’s role in the conspiracy. Larry Walton testified that from 1993 to 1995 he would buy a quarter or half an ounce of crack two or three times a week from Anthony, which Walton then would sell on the street. In addition, Anthony Peoples testified that Larry gave him powder and crack cocaine to give to Anthony Latham on several different occasions. Although Anthony was less culpable than the primary coconspirators, Larry and Owusu, he was not less culpable than the other participants or substantially less culpable than the average participant in the conspiracy. The evidence shows that he was more than an end user and occasional street-level seller of drugs. Anthony obtained powder and crack cocaine from his brother Larry and then actively sold it to McGraw and Walton, street-level suppliers, on a regular basis. Therefore, the sentencing court did not err in refusing to apply a mitigating role adjustment to his offense level under U.S.S.G. § 3B1.2. 2. Quantity of Drugs Involved We review for clear error a sentencing court’s calculation of the quantity of drugs for which a defendant is accountable. See United States v. Berry, 90 F.3d 148, 152 (6th Cir.), cert. denied, 519 U.S. 999, 117 S.Ct. 497, 136 L.Ed.2d 389 (1996). A sentencing court may hold a defendant accountable for a specific" }, { "docid": "23122208", "title": "", "text": "granting him a new trial because the jurors knew about his prior convictions during the deliberations on his charges. Where extraneous materials are presented to the jury, the defendant will receive a new trial if we find a reasonable possibility that the material could have affected the verdict. United States v. Maree, 934 F.2d 196, 201 (9th Cir.1991) (citing United States v. Madrid, 842 F.2d 1090, 1093-94 (9th Cir.), cert. denied, 488 U.S. 912, 109 S.Ct. 269, 102 L.Ed.2d 256, 257 (1988)). We review the district court’s findings as to historical facts relating to the issue of jury misconduct for clear error. United States v. Shirley, 884 F.2d 1130, 1132 (9th Cir.1989). The district court denied Matta-Ballesteros’s motion. See United States v. Caro-Quintero, 769 F.Supp. 1564 (C.D.Cal.1991). The court held that the single juror who testified that the jury had access to extraneous information during its deliberation on the charges against Matta-Balleste-ros was not credible, based on the contradiction between his testimony during the in camera examination, his declaration, and his testimony at the evidentiary hearing. We review the trial court’s ruling on the credibility of a witness for clear error. United States v. Clawson, 831 F.2d 909, 914 (9th Cir.1987), cert. denied, 488 U.S. 923, 109 S.Ct. 303, 102 L.Ed.2d 323 (1988). Furthermore, “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1984). This case is no exception. The single juror’s testimony contradicted the testimony of other jurors as well as his own prior testimony. The juror’s testimony also was vague as to exactly when he learned of Mat-ta-Ballesteros’s prior convictions and the substance of what he learned about them before a verdict was reached. This testimony provides no basis for finding that the jury received extraneous information. Therefore, the district court’s" }, { "docid": "23693602", "title": "", "text": "splice sheets, whereas in the patented structure the sheets are joined by splice plates which are smaller in size and operate differently. Richardson testified that the significant structural differences between the Kaiser trailer and the claimed invention led to his conclusion that the Kaiser trailer was not material. The district court found that the wall structure of the Kaiser trailer was more similar to the invention claimed in the '017 patent than it was to the prior art sheet and post designs, and therefore met the required threshold of materiality. As to intent, Richardson testified that he did not consider the Kaiser trailer material because it did not contain several elements of the plate trailer that he considered critical, and which were claimed in the '017 patent. The district court found Richardson’s testimony credible, and thus found that he lacked deceptive intent. D. The District Court’s Findings Regarding Intent For each of the three alleged instances of inequitable conduct, the district court found that Stoughton had failed to prove the requisite intent to deceive the PTO. We review the district court’s findings of fact for clear error. It is established that “credibility determinations by the trial judge ‘can virtually never be clear error.’ ” First Interstate Bank of Billings v. United States, 61 F.3d 876, 882 (Fed.Cir.1995) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). In Anderson, the Court stated: [Wjhen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. 470 U.S. at 575, 105 S.Ct. at 1512. While Richardson was apparently the only witness to testify during the bench trial, his testimony was “a coherent and facially plausible story that is not contradicted by extrinsic evidence,” and the trial court evidently believed him. Because the court’s finding on intent was not inconsistent with extrinsic evidence, we hold that" }, { "docid": "2020917", "title": "", "text": "made, and he admitted that his memory was not very good. Again, the district court failed to mention the potentially inconsistent cross-examination testimony, indicating merely that the six to seven ounce figure had come from Truitt’s “courtroom testimony.” (Nov. 30, 1992 Tr. at 11.) In Duarte, we explained that where a sentencing court “relies upon one of two contradictory statements offered by a single witness, it should directly address the contradiction and explain why it credits one statement rather than the other.” 950 F.2d at 1266; see also Miele, 989 F.2d at 664 (refusing to uphold a sentence imposed on the basis of the higher of two inconsistent estimates where the district court failed to address the inconsistency); cf. United States v. Walton, 908 F.2d 1289, 1302 (6th Cir.) (“when choosing between a number of plausible estimates of drug quantity, none of which is more likely than not the correct quantity, a court must err on the side of caution”), cert. denied, 498 U.S. 906, 989, 990, 111 S.Ct. 273, 530, 532, 112 L.Ed.2d 229, 541, 542 (1990). We believe the Duarte principle applies here where the witness makes a conclusory estimate in his direct testimony and then is unable to support that figure on cross-examination., Before the court relies on the higher estimate, it must provide some explanation for its failure to credit the inconsistent statement on cross-examination. Cf. United States v. Casas, 999 F.2d 1225, 1230 (8th Cir.1993) (district court found witness’ estimate credible despite forceful cross-examination), cert. denied, — U.S. -, 114 S.Ct. 894, 127 L.Ed.2d 86 (1994). Absent such an explanation, we cannot conclude that a preponderance of the evidence supports the court’s finding. See Sepulveda, 15 F.3d at 1198-1199. We thus direct that the district court revisit Truitt’s testimony on remand. It is clear, as the government asserts, that the scope of Beler’s cocaine dealings extended beyond the 31.8 grams for which he was convicted. Yet the fact that Beler made other cocaine sales does not corroborate the specific estimates of drug quantity provided either by Covington or Truitt. The relevant question under section 2D1.1(a)(3)" }, { "docid": "22666716", "title": "", "text": "whether the district court erred in its factual determination of the drug quantity for which Rodriguez was responsible. Our review is limited to clear error. United States v. Auguste, 392 F.3d 1266, 1267 (11th Cir.2004); United States v. Clay, 376 F.3d 1296, 1300 (11th Cir.2004). Where the factfinding resolves a- swearing match of witnesses, the resolution will almost never be clear error. Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985) (“[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.”); see also United States v. Gregg, 179 F.3d 1312, 1316 (11th Cir.1999) (“We accord great deference to the district court’s credibility determinations.”). Section 2D1.1 of the guidelines provides that the base offense level for a possession or a conspiracy drug offense is ordinarily calculated by determining the quantity of drugs attributable to a defendant. See generally U.S.S.G. § 2Dl.l(a). The guidelines also provide that courts shall consider as relevant to this determination “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant •... that occurred during the commission of the offense of conviction....” U.S.S.G. § lB1.3(a)(l)(A). When a defendant objects to a factual finding that is used in calculating his guideline sentence, such as drug amount, the government bears the burden of establishing the disputed fact by a preponderance of the evidence. United States v. Agis-Meza, 99 F.3d 1052, 1055 (11th Cir.1996). “The preponderance of evidence is a relaxed evidentiary standard, however, it does not grant the court a license to sentence a defendant in the absence of sufficient evidence when that defendant has properly objected to a factual conclusion.” Id. “ ‘Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.’” United States" }, { "docid": "22666715", "title": "", "text": "that the results of Rodriguez’s polygraph examination were questionable because his own statements during the examination were inconsistent with his trial testimony. The district court determined that, although Salgado’s credibility was undermined by his history of dishonesty, Ruz’s testimony was specific as to his interactions with Rodriguez, and Rodriguez’s credibility on the issue of the quantity of drugs he had transported was undermined by his inconsistent trial testimony that he had no involvement in the crime. The court also found that the results of Rodriguez’s polygraph examination were not persuasive because they were inconsistent with his trial testimony and because the questions asked during the examination were not related specifically enough to drug quantity. The court overruled Rodriguez’s objection to the PSR’s calculation of drug quantity. After granting Rodriguez’s request for a two-level minor role downward adjustment, pursuant to U.S.S.G. § 3B1.2(b), the district court determined .that the resulting guideline range was 97 to 121 months’ imprisonment. It sentenced Rodriguez to 109 months’ imprisonment and 3 years’ supervised release. III. Rodriguez’s only preserved issue is whether the district court erred in its factual determination of the drug quantity for which Rodriguez was responsible. Our review is limited to clear error. United States v. Auguste, 392 F.3d 1266, 1267 (11th Cir.2004); United States v. Clay, 376 F.3d 1296, 1300 (11th Cir.2004). Where the factfinding resolves a- swearing match of witnesses, the resolution will almost never be clear error. Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985) (“[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.”); see also United States v. Gregg, 179 F.3d 1312, 1316 (11th Cir.1999) (“We accord great deference to the district court’s credibility determinations.”). Section 2D1.1 of the guidelines provides that the base offense level for a possession or a conspiracy drug offense is ordinarily calculated" }, { "docid": "22127249", "title": "", "text": "amount of drugs only if the defendant is more likely than not responsible for a quantity greater than or equal to that amount. See United States v. Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). If the exact amount of drugs involved is uncertain, the court may make an estimate supported by competent evidence in the record. See United States v. Ward, 68 F.3d 146, 149 (6th Cir.1995), cert. denied, 516 U.S. 1151, 116 S.Ct. 1028, 134 L.Ed.2d 106 (1996). The evidence “ ‘must have a minimal level of reliability beyond mere allegation,’ ” and the court should err on the side of caution in making its estimate. See United States v. Baro, 15 F.3d 563, 569 (6th Cir.) (quoting United States v. West, 948 F.2d 1042, 1045 (6th Cir.1991)), cert. denied, 513 U.S. 912, 115 S.Ct. 287, 130 L.Ed.2d 202 (1994). Testimonial evidence from a coconspirator may be sufficient to determine the amount of drugs for which another coconspirator should be held accountable. See United States v. Pruitt, 156 F.3d 638, 647 (6th Cir.1998), cert. denied, — U.S.-, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999). We defer to a district court’s credibility determinations unless they have no foundation. See id. The district court held Anthony accountable for 195 grams of crack cocaine, resulting in a base offense level of 34. Anthony argues that the district court should not have included 56.7 grams of crack cocaine in that total amount because it was based on unreliable testimony from McGraw. McGraw testified that Anthony sold him an “eighth of a key, 2 ounces” of crack cocaine to sell at a crack house several different times in 1988 and 1989. J.A. at 326. McGraw also testified that Anthony “fronted” him by supplying him with an ounce of crack “every week or so” for two to three months in 1993. J.A. at 335-36. Anthony makes the same arguments here as in the previous section challenging the credibility of McGraw’s testimony. As discussed in Part II.A.1 supra, these arguments must be rejected. Moreover," }, { "docid": "22127248", "title": "", "text": "Peoples testified that Larry gave him powder and crack cocaine to give to Anthony Latham on several different occasions. Although Anthony was less culpable than the primary coconspirators, Larry and Owusu, he was not less culpable than the other participants or substantially less culpable than the average participant in the conspiracy. The evidence shows that he was more than an end user and occasional street-level seller of drugs. Anthony obtained powder and crack cocaine from his brother Larry and then actively sold it to McGraw and Walton, street-level suppliers, on a regular basis. Therefore, the sentencing court did not err in refusing to apply a mitigating role adjustment to his offense level under U.S.S.G. § 3B1.2. 2. Quantity of Drugs Involved We review for clear error a sentencing court’s calculation of the quantity of drugs for which a defendant is accountable. See United States v. Berry, 90 F.3d 148, 152 (6th Cir.), cert. denied, 519 U.S. 999, 117 S.Ct. 497, 136 L.Ed.2d 389 (1996). A sentencing court may hold a defendant accountable for a specific amount of drugs only if the defendant is more likely than not responsible for a quantity greater than or equal to that amount. See United States v. Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). If the exact amount of drugs involved is uncertain, the court may make an estimate supported by competent evidence in the record. See United States v. Ward, 68 F.3d 146, 149 (6th Cir.1995), cert. denied, 516 U.S. 1151, 116 S.Ct. 1028, 134 L.Ed.2d 106 (1996). The evidence “ ‘must have a minimal level of reliability beyond mere allegation,’ ” and the court should err on the side of caution in making its estimate. See United States v. Baro, 15 F.3d 563, 569 (6th Cir.) (quoting United States v. West, 948 F.2d 1042, 1045 (6th Cir.1991)), cert. denied, 513 U.S. 912, 115 S.Ct. 287, 130 L.Ed.2d 202 (1994). Testimonial evidence from a coconspirator may be sufficient to determine the amount of drugs for which another coconspirator should be held accountable." }, { "docid": "22127256", "title": "", "text": "transactions described in McGraw’s testimony, cannot conclusively be determined to be crack. The government may establish the identity of a drug by circumstantial evidence. See United States v. Wright, 16 F.3d 1429, 1439 (6th Cir.), cert. denied, 512 U.S. 1243, 114 S.Ct. 2759, 129 L.Ed.2d 874 (1994). Expert testimony is not necessary, and a lay witness who has personal experience with crack cocaine can establish that a substance is crack. See id. at 1439^10 (affirming the district court’s finding that the substance involved was crack cocaine based on testimony from several government witnesses who had seen the defendant “cutting” crack or had seen the substance and knew it was crack based on their personal experience). In this case, McGraw specifically testified that Anthony sold him the crack form of cocaine base in 1988 and 1989. He also testified that Anthony supplied him with crack cocaine for several months in 1993. McGraw appears to have based his conclusions that these transactions in volved crack on his personal experience. He had observed Larry cook crack cocaine on several different occasions in 1989, 1990, and 1994, and therefore could differentiate crack from other forms of cocaine base. Because McGraw had sufficient experience to make this determination, the district court did not err in relying on this testimony to conclude that the drugs Anthony sold McGraw were crack under U.S.S.G. § 2D1.1. 4. 18 U.S.C. § 201(c)(2) Finally, Anthony argues that the district court should have granted him a new trial because the government allegedly violated 18 U.S.C. § 201(c)(2). He relies on United States v. Singleton, 144 F.3d 1343, 1350-51 (10th Cir.1998), which held that the government violates this provision when it impermissibly promises witnesses something of value, such as a more lenient sentence, in exchange for testimony. This decision, however, was vacated and reversed by the Tenth Circuit in an en banc decision. See United States v. Singleton, 165 F.3d 1297 (10th Cir.) (en banc), cert. denied, — U.S.-, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999). Moreover, we expressly rejected this analysis and holding in United States v. Ware, 161 F.3d 414," }, { "docid": "23238410", "title": "", "text": "the record is replete with evidence showing that Wooden still suffered from pedophilia, and the government argues that the district court committed clear error by ignoring the substantial amount of contradictory evidence. See, e.g., Francis, 686 F.3d at 273 (“A court commits clear error when it makes findings without properly taking into account substantial evidence to the contrary.” (internal quotation marks omitted)). Wooden, however, notes that expert opinion is critical when a court is called upon to determine whether an individual suffers from a mental illness. See Addington v. Texas, 441 U.S. 418, 429, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (‘Whether the individual is mentally ill and dangerous to either himself or others ... turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.”). Because there was conflicting expert testimony about whether Wooden continued to suffer from pedophilia, Wooden argues that the district court’s decision to credit Dr. Campbell’s testimony over that of the government’s experts cannot be clearly erroneous. See, e.g., Anderson, 470 U.S. at 575, 105 S.Ct. 1504 (“[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.”). As Wooden notes, a court reviewing for clear error “should be especially reluctant to set aside a finding based on the trial court’s evaluation of conflicting expert testimony.” Hall, 664 F.3d at 463 (internal quotation marks omitted). Nonetheless, while clear-error review is “deferential, it is not toothless.” In re Agnew, 144 F.3d 1013, 1014 (7th Cir.1998) (per curiam); accord Jiminez v. Mary Washington Coll., 57 F.3d 369, 379 (4th Cir. 1995) (district court’s factual findings are not “so sacrosanct as to evade review”). And as we will explain, our careful review of the evidence has left us “with the defi nite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68" }, { "docid": "22199080", "title": "", "text": "number of days in which the defendant participated in the conspiracy if these figures are reliable, and the average amount sold per day was reasonably foreseeable. See United States v. Clemons, 999 F.2d 154, 156 (6th Cir.1993), cert. denied, 510 U.S. 1050, 114 S.Ct. 704, 126 L.Ed.2d 671 (1994). The district court need not find the quantity of drugs for sentencing purposes down to a precise figure, but may approximate the quantity of drugs within a specific range. See United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991) (district court’s finding that the amount of cocaine fell within a range of 5 to 14.9 kilograms was affirmed); United States v. Nelson, 922 F.2d 311, 316 (6th Cir.1990) (district court’s finding that the defendant was responsible for between 500 grams and 2 kilograms of cocaine was upheld), cert. denied, 499 U.S. 981, 111 S.Ct. 1635, 113 L.Ed.2d 731 (1991). Finally, district courts may approximate the quantity of drugs for sentencing purposes based upon circumstantial evidence, United States v. Stephenson, 924 F.2d 753, 764-65 (8th Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 39 (1991), as long as they err on the side of caution. United States v. Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). We believe that the district court in the present case did not err in calculating the quantity of drugs. We find the district court’s determination that the total amount of cocaine involved in the conspiracy was between 15 and 50 kilograms of cocaine is supported by a preponderance of the evidence and errs on the side of caution. For example, coconspirator Anthony Kelly testified that in a single year, 1988, he supplied one kilogram of cocaine per month to defendant Jones for a period of approximately 13 to 14 months. Coconspirator Leroy Adderly testified he purchased a kilogram of cocaine from Jones on three separate occasions in 1988 and 1989. Codefendant Nathan Watson testified that he brought cocaine from Florida seven to ten times in 1987 and 1988, transporting between 5" }, { "docid": "14761746", "title": "", "text": "is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Id. at 1513. Our task then is not to weigh the evidence in the record anew; instead, we must determine whether the trial judge’s interpretation of the facts is implausible, illogical, internally inconsistent or contradicted by documentary or other extrinsic evidence. Id. If it is not, the trial court’s findings cannot be found to be clearly erroneous. Id., accord Scandia Down Corp. v. Euroquilt Inc., 772 F.2d 1423 (7th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1801, 90 L.Ed.2d 346 (1986); Andre v. The Bendix Corp., 774 F.2d 786 (7th Cir.1985) (remanded because reviewing court was unable to identify any rational or articulated reason by which the ultimate finding of sex discrimination could be supported); Tulloss v. Near North Montessori School, Inc., 776 F.2d 150 (7th Cir.1985). After carefully reviewing the entire record in this case, we are not left with a definite and firm conviction that the trial court made a mistake. The district court’s account of the evidence is plausible in light of the record viewed in its entirety. The judge’s decision to credit the testimony of some witnesses over that of others was not clear error. We have searched the record for any indication that the credited testimony or the trial court’s account of the evidence was incoherent, internally inconsistent, implausible on its face, or contradicted by extrinsic evidence. We found no such indication, and plaintiff has not convincingly pointed to any. Thus, the trial court did not clearly err in finding that the plaintiff was discharged because of poor perform- anee on the job, not because of race or sex discrimination, and not because she reported alleged police brutality to her supervisors in the Fifth District during her field training. The district court’s decision rests upon three findings of fact: (1) that Ratliff was fired because of her poor" }, { "docid": "18850155", "title": "", "text": "to the quantities involved, unambiguously indicated that the sales occurred weekly over a four month period. Her failure to recall the de- II. Calculation of Quantity: More problematic is the conclusion that the sales involved 80 grams of heroin. As we have recently observed, “the relevant issue is not whether [defendant distributed [heroin], but rather the quantity of [heroin] that [defendant distributed.” Ortiz, 993 F.2d at 208. Estimates of drug quantities are not necessarily forbidden: “[w]e have allowed quantity determinations for base offense level calculations to be based on estimates under a variety of circumstances.” United States v. Garcia, 994 F.2d 1499, 1508 (10th Cir.1993). The estimates must, however, have “some basis of support in the facts of the particular case.” Id. “ ‘[W]hen choosing between a number of plausible estimates of drug quantity, none of which is more likely than not the correct quantity, a court must err on the side of caution.’ ” Ortiz, 993 F.2d at 208 (quoting United States v. Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S. 990, 111 S.Ct. 532, 112 L.Ed.2d 542 (1990)). We agree with the Third Circuit’s observation that the recognition of the need to estimate drug quantities at times “is not a license to calculate drug quantities by guesswork.” United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 449, 126 L.Ed.2d 382 (1993); see also United States v. Beler, 20 F.3d 1428, 1433 n. 2 (7th Cir.1994). We find that there is insufficient minimally reliable evidence to meet the government’s burden of proving the existence of the 80 grams of additional heroin. Ortiz involved out-of-court statements by a confidential informant, supported by the defendant’s admission that he had sold marijuana to two friends on several occasions and an intercepted phone call establishing a one-time marijuana sale. We held that that evidence did not support the conclusion that defendant was distributing three pounds of marijuana per week over an eighteen month period. Here, Ms. Drake testified in court as to the weekly sales of heroin, but her testimony was extremely" }, { "docid": "22199081", "title": "", "text": "cert. denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 39 (1991), as long as they err on the side of caution. United States v. Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). We believe that the district court in the present case did not err in calculating the quantity of drugs. We find the district court’s determination that the total amount of cocaine involved in the conspiracy was between 15 and 50 kilograms of cocaine is supported by a preponderance of the evidence and errs on the side of caution. For example, coconspirator Anthony Kelly testified that in a single year, 1988, he supplied one kilogram of cocaine per month to defendant Jones for a period of approximately 13 to 14 months. Coconspirator Leroy Adderly testified he purchased a kilogram of cocaine from Jones on three separate occasions in 1988 and 1989. Codefendant Nathan Watson testified that he brought cocaine from Florida seven to ten times in 1987 and 1988, transporting between 5 to 10 kilograms of cocaine. Coconspirator Jesse Anthony testified he traveled between Macon and Knoxville on about five separate occasions to acquire cocaine in Macon to be sold in Knoxville. He transported approximately 17 ounces for distribution between the fall of 1986 and January 1987. There was also testimony that cocaine was transported from Florida every month to month and a half in 1989 in the amounts of anywhere from nine ounces to three kilograms. Numerous witnesses testified that they sold cocaine at College Homes or Austin Homes on a daily basis and that drugs were sold from about noon to midnight. In a recorded conversation on September 14, 1991, Jones indicated he was making $200,-000 in a month and a half from his sale of cocaine. A recorded conversation on December 3, 1991, confirmed that defendant Miller acquired multiple quantities of cocaine from the Florida Boys organization. Coconspirator testimony indicated that there were numerous salespersons, lookouts, and transporters involved in the conspiracy. There was testimony that defendant Jones and co-defendant Watson bagged at least" }, { "docid": "22127250", "title": "", "text": "See United States v. Pruitt, 156 F.3d 638, 647 (6th Cir.1998), cert. denied, — U.S.-, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999). We defer to a district court’s credibility determinations unless they have no foundation. See id. The district court held Anthony accountable for 195 grams of crack cocaine, resulting in a base offense level of 34. Anthony argues that the district court should not have included 56.7 grams of crack cocaine in that total amount because it was based on unreliable testimony from McGraw. McGraw testified that Anthony sold him an “eighth of a key, 2 ounces” of crack cocaine to sell at a crack house several different times in 1988 and 1989. J.A. at 326. McGraw also testified that Anthony “fronted” him by supplying him with an ounce of crack “every week or so” for two to three months in 1993. J.A. at 335-36. Anthony makes the same arguments here as in the previous section challenging the credibility of McGraw’s testimony. As discussed in Part II.A.1 supra, these arguments must be rejected. Moreover, the district court’s determination that McGraw’s testimony was credible is not without foundation because McGraw had no reason to single Anthony out for these transactions and because his testimony regarding Anthony’s activities was consistent with other testimony in the record. Based on this specific evidence, the sentencing court properly erred on the side of caution and estimated that Anthony should be held accountable for only two ounces of crack cocaine, or 56.7 grams. Therefore, it was not clear error to include the 56.7 grams of crack cocaine in his total attributed amount of 195 grams. 3. Determination that Drugs Were Crack Cocaine Anthony also argues that the district court incorrectly determined that the drugs attributable to him were “crack” when it applied the enhanced penalty associated with this form of cocaine base under the Sentencing Guidelines. At sentencing, the government has the burden of proving by a preponderance of the evidence that the drugs involved were the “crack” form of cocaine base, as defined under U.S.S.G. § 2D1.1. See United States v. Jones, 159 F.3d" }, { "docid": "23693603", "title": "", "text": "PTO. We review the district court’s findings of fact for clear error. It is established that “credibility determinations by the trial judge ‘can virtually never be clear error.’ ” First Interstate Bank of Billings v. United States, 61 F.3d 876, 882 (Fed.Cir.1995) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). In Anderson, the Court stated: [Wjhen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. 470 U.S. at 575, 105 S.Ct. at 1512. While Richardson was apparently the only witness to testify during the bench trial, his testimony was “a coherent and facially plausible story that is not contradicted by extrinsic evidence,” and the trial court evidently believed him. Because the court’s finding on intent was not inconsistent with extrinsic evidence, we hold that it was not clearly erroneous. Id. Thus, we cannot disturb the court’s declaratory judgment that inequitable conduct was not proven. CONCLUSION Accordingly, on the appeal, we affirm the denial of Stoughton’s counterclaim for a declaratory judgment of unenforceability for inequitable conduct. On the cross-appeal, we reverse the grant of summary judgment of invalidity based on the sample trailer being on-sale or in public use before the critical date. We do so because Mo-non’s evidence on summary judgment raised numerous genuine issues of material fact as to whether the December 19, 1983 contract between Monon and Continental was primarily intended to permit experimental use of the trailer. Although we conclude that Stoughton cannot prevail at the summary judgment stage as to its on-sale bar defense, on remand other matters may be amenable to resolution through summary judgment. If not, the district court should conduct a trial on the merits of the case, including the on-sale bar issue. AFFIRMED-IN-PART, REVERSED-IN-PART, AND REMANDED. COSTS No costs." }, { "docid": "22299377", "title": "", "text": "reasonable to believe the vehicle contains evidence of the offense of arrest.” Gant, 129 S.Ct. at 1723. Brewer’s argument is premised on the assertion, which he makes for the first time on appeal, that the police seized the cash from his van. In his motion to suppress, Brewer asserted that the cash was found in his pants pocket. At the suppression hearing, however, DEA Officer Moyle, who was part of the surveillance team at the mall during the September 19 transaction, testified that the cash was seized from Brewer’s van. The magistrate judge credited Officer Moyle’s testimony and found that the cash was seized from the van. As noted, we review the entire record, including the evidence adduced at trial, in reviewing the denial of a motion to suppress. See Anderson, 339 F.3d at 723. The Supreme Court has stated that when a district court’s factual “finding is based on his decision to credit the testimony of one or two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). In this case, Officer Moyle admitted in his testimony at the suppression hearing that he did not participate in the stop, arrest, or search of Brewer on September 19, 2008. Officer Moyle thus lacked firsthand knowledge about where the seized money was found. Officer Joecken, who searched Brewer incident to the September 19 arrest, did not testify at the suppression hearing. At trial, however, Officer Joecken testified that he found the $800 in Brewer’s pants pocket. Brewer likewise testified at trial that the cash was seized from his pocket. Thus, the two participants in the search— Officer Joecken and Brewer — agreed that the $800 was seized from Brewer’s person, thereby contradicting Officer Moyle’s testimony. The district court adopted the magistrate judge’s finding that the cash was seized from Brewer’s van. After reviewing the entire record, we conclude that this" }, { "docid": "22106287", "title": "", "text": "of the credibility of witnesses is peculiarly within the province of the trier of fact and is entitled to considerable deference.”). Accordingly, “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson, 470 U.S. at 575, 105 S.Ct. 1504. The erroneous admission of evidence may nonetheless be harmless if “the appellate court can conclude with fair assurance that th[e] evidence did not substantially influence the jury,” United States v. Jean-Baptiste, 166 F.3d 102, 108 (2d Cir.1999) (citing Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)), and “only if ‘it is highly probable that the error did not contribute to the verdict.’ ” Id. (quoting United States v. Colombo, 909 F.2d 711, 713 (2d Cir.1990)); see also United States v. Smith, 987 F.2d 888, 892 (2d Cir.1993). “That standard is met when the court possesses a sure conviction that the error did not prejudice the defendant.” United States v. Saada, 212 F.3d 210, 222 (3d Cir.2000) (internal quotation marks omitted). Thus, in order for an error to be deemed harmless, the reviewing court must conclude beyond a reasonable doubt that a rational jury would have rendered a verdict of guilty absent the alleged error. See Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (“[Bjefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”); United States v. Jackson, 196 F.3d 383, 385 (2d Cir.1999), cert. denied, 530 U.S. 1267, 120 S.Ct. 2731, 147 L.Ed.2d 993 (2000). In undertaking this inquiry, courts weigh various factors to determine whether an alleged constitutional error is harmless. For example, in evaluating whether the erroneous admission of evidence constitutes harmless error," } ]

[ { "docid": "486444", "title": "", "text": "we think clearly he does. Appellant not only copied the claim from appellees’ patent but also relies on inherency of the disclosure, as supplemented by the prior art, for support of the count. Under such circumstances appellant has a twofold burden. As this court said in Dreyfus v. Sternau, 53 CCPA 1050, 357 F. 2d 411, 149 USPQ 63 (1966): Eirst, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. * * * There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. * - * Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. This doctrine, which the board followed in the instant case, has been reaffirmed by this court in several recent cases. See, Reed v. Tornquist, 58 CCPA 864, 436 F. 2d 501, 168 USPQ 462 (1971); Noyce v. Kilby, 57 CCPA 1156, 416 F. 2d 1391, 163 USPQ 550 (1969), and Gubel mann v. Gang, 56 CCPA 1013, 408 F. 2d 758, 161 USPQ, 216 (1969). We find absolutely no merit to appellant’s contention that the examiner’s decision denying appellees’ motion to dissolve switched the burden to appellees. The examiner’s decision merely left the issue for the board .to resolve after testimony was taken. We also agree with the board that appellant has failed to meet his burden of proof in this case. Although we see nothing wrong with the board’s approach, since appellant considers two main issues to be presented, we will discuss them as appellant has presented them. First, appellant asserts that one skilled in the art reading the Tum-mers’ disclosure would know epitaxial layers were inherently intended because all known bipolar transistors were built with single crystal layers. While we have no doubt that one of ordinary skill in the art would have thought of epitaxial layers if appellant" } ]

[ { "docid": "14518763", "title": "", "text": "Dubbs, 88 F.2d 734, 737, 24 CCPA 1023, 1028, 33 USPQ 91, 94 (1937), this court considered the question of “the burden of proof relative to inherency, and inoperativeness as it bears upon inherency.” However, the court’s discussion of the burden of proof on inherency was dictum, since it found that Dubbs, senior party and copier, had established a prima facie showing of inherency: Under all the facts of this case, we think a prima facie showing of inherency was made in the application of Dubbs, and that it was, therefore, incumbent upon Coast as the junior party to show lack of inherency . . . . [Id. 88 F.2d at 738, 24 CCPA at 1030, 33 USPQ at 96.] The burden of proof (by clear and convincing evidence) on the description issue also lies with appellant, as the party copying claims from a patent. At oral hearing, appellant argued that the burden rests upon appellees, citing Pew v. Gard, 97 F.2d 591, 25 CCPA 1326, 38 USPQ 115 (1938). In Pew, which involved the issue of whether the senior party-copier inherently disclosed a limitation of the counts, this court held that the burden of proof was on the junior party (Pew), who had raised the issue of inherency by filing a motion to dissolve the interference with respect to the senior party’s right to make the counts. This assignment of the burden of proof, however, has not been followed in the later cases. For example, in Dreyfus v. Sternau, supra, which also involved the issue of inherency in the disclosure of the senior party-copier raised by the junior party on a motion to dissolve the interference, this court said: By copying claims from an issued patent, and lacking express support for the limitations found therein, Sternau was faced with a twofold burden. First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved" }, { "docid": "4451683", "title": "", "text": "reaffirmed by this court in several recent cases. See, Reed v. Tornqvist, 436 F.2d 501, 58 CCPA 864 (1971); Noyce v. Kilby, 416 F.2d 1391, 57 CCPA 1156 (1969), and Gubelmann v. Gang, 408 F.2d 758, 56 CCPA 1013 (1969). We find absolutely no merit to appellant’s contention that the examiner’s decision denying appellees’ motion to dissolve switched the burden to appellees. The examiner’s decision merely left the issue for the board to resolve after testimony was taken. We also agree with the board that appellant has failed to meet his burden of proof in this case. Although we see nothing wrong with the board’s approach, since appellant considers two main issues to be presented, we will discuss them as appellant has presented them. First, appellant asserts that one skilled in the art reading the Tummers’ disclosure would know epitaxial layers were inherently intended because all known bipolar transistors were built with single crystal layers. While we have no doubt that one of ordinary skill in the art would have thought of epitaxial layers if appellant had disclosed homostruetures, such as silicon on silicon or germanium on germanium, we cannot say the same about the germanium on silicon hetero-structures disclosed. The evidence clearly supports the view, in conformity with the board’s findings, that in such situations one of ordinary skill in the art might very well think Tummers intended to disclose polycrystalline or amorphous layers. As mentioned above, if there is any doubt whatsoever about whether the limitations of the count are inherent in Tummers’ disclosure, it must be resolved against Tummers. Reed v. Tornqvist, supra; Noyce v. Kilby, supra; Gubel-mann v. Gang, supra; Dreyfus v. Ster-nau, supra. Secondly, we think it even more persuasive of the holding that Tummers cannot make the count that one of ordinary skill in the art would not have known how to deposit epitaxial germanium layers on silicon even if he knew that epitaxial layers were intended by Tum-mers. The Tummers’ disclosure states that the germanium is vapor deposited on the silicon “in known manner, not essential to the invention.” The evidence of record" }, { "docid": "6375548", "title": "", "text": "burden of proof on this point. As this court said in Dreyfus v. Sternau, 357 F.2d 411, 415, 53 CCPA 1050, 1054 (1966): First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. Jepson v. Coleman, 314 F.2d 533, 50 CCPA 1051 [(1963)]. There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. Jepson v. Coleman, supra; Bierly v. Happoldt, 201 F.2d 955, 40 CCPA 774 [(1953)]. Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. Crome v. Morrogh, 239 F.2d 390, 44 CCPA 704 [(1956)]. In Hansgirg v. Kemmer, 102 F.2d 212, 26 CCPA 937 (1939), the court said (emphasis in original): Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient. [Citations omitted.] If, however, the disclosure is sufficient to show that the natural result flowing from the operation as taught would result in the performance of the questioned function, it seems to be well settled that the disclosure should be regarded as sufficient. Since “substantial contact” is an ambiguous term, resort to Pingree’s specification for its construction is proper. Rion v. Ault, 482 F.2d 948, 953-54, (Oust. & Pat.App. 1973). “Substantial contact” does not appear in haec verba therein, but it is clear that the purpose of the patented invention is to remove guard hair without damaging the underlying fur. The specification expresses the object of providing “a method for removing guard hair which does ont [sic] adversely affect or remove the fur.” Count 1 itself recites the purpose of “removing guard hair from a fur seal skin without substantial removal of fur therefrom.” (Emphasis added.) Pingree’s own witness, Rosenbaum, testified that “substantial contact” would necessarily damage the fur; and appellant Batman similarly defined “substantial" }, { "docid": "17821620", "title": "", "text": "F. 2d 999, 5 USPQ 436; In re O'Dowd, 18 CCPA 1002, 47 F. 2d 392, 8 USPQ 187; Field v. Stow, 18 CCPA 1502, 49 F. 2d 1072, 9 USPQ 483; Sweetland v. Cole, 19 CCPA 751, 53 F. 2d 709, 11 USPQ 174; Mudd v. Schoen, 19 CCPA 840, 54 F. 2d 959, 12 USPQ 102; Bragg v. Besler, 19 CCPA 1084, 56 F. 2d 881, 13 USPQ 6, In re Fischer, 19 CCPA 1231, 58 F. 2d 1058, 13 USPQ 386; In re Creveling, 20 CCPA 701, 61 F. 2d 862, 15 USPQ 264; In re Replogle, 21 CCPA 1068, 70 F. 2d 375, 21 USPQ 392; Kean v. Wheelan, 26 CCPA 1010, 102 F. 2d 824, 41 USPQ 226; In re Draeger, 32 CCPA 1217, 150 F. 2d 572, 66 USPQ 247; Crome v. Morrogh, 44 CCPA 704, 239 F. 2d 390, 112 USPQ 49. In some of the above cases it is said that “express limitations” must be regarded as “material” but it is not seen how this legal characterization adds anything to the rule that express limitations will not be ignored in determining whether the count finds support in an applicant’s disclosure. With reference to “materiality,” note is taken of the provision of Rule 205, Rules of Practice in Patent Cases, which provides that in copying patent claims for interference “an immaterial limitation or variation” may be excluded. This was not attempted by appellant herein and he cannot now be heard to insist that the involved limitation is not material, however else it may be characterized. Hall v. Taylor, 51 CCPA 1420, 332 F. 2d 844, 141 USPQ 821 (1964), cannot help appellant. It is not a comparable case. Taylor copied the count from Hall’s patent and the question was whether it found support in his 1953 parent application, on the date of which he was obliged to rely. The board found it did and we affirmed. We held, in accord with the established rule, that “all limitations of a-claim must be considered” and, doing so, we found Taylor’s application supported them. The appellant," }, { "docid": "13637592", "title": "", "text": "of ordinary skill in the art, this would clearly be in error. Chase v. Gartner, 54 CCPA 1385, 374 F. 2d 914, 153 USPQ 129 (1967); Field v. Knowles, 37 CCPA 1211, 183 F. 2d 593, 86 USPQ 373 (1950); Trumbull v. Kirschbraun, 21 CCPA 758, 67 F. 2d 974, 20 USPQ 46 (1933). The tests and burdens to be applied when operability is in issue were set forth by this court in Field v. Knowles, supra: The disclosure of an application placed in interference by the Patent Office is presumed to be an operative disclosure, Mark v. Greenawalt, 32 App. D.C. 253, and will not be held to be inoperative unless it is established (by the junior party by a preponderance of the evidence, Trumbull et al. v. Kirschbraun, 21 C.C.P.A. (Patents) 758, 67 P. (2d) 974, 20 U.S.Pat.Q. 46) that it cannot be made to operate for any practical or useful purpose, Mark v. Greenawalt, supra, by such changes and alterations, shout of invention, which one stóiiled in the art would be capable of applying in constructing the device with tibe disclosure of the specification and the drawings of tto'e application as his guide. * * * The capacity to perform in the manner intended, though only in a crude way, is sufficient, Hildreth v. Mastoras, 257 U.S. 27, 34; Williams v. Handschiegl, 18 C.C.P.A. (Patents) 1176, 48 P. (2d) 395, 9 U.S. Pat. Q. 186. However, despite the board’s reliance on Brand v. Thomas, we conclude that it properly placed the burden on appellee to show both that the device disclosed in Nicolaou is inoperative and that it could not be made to operate by making changes obvious to one of ordinary skill in the art. From our review of the board decision, it seems clear that the board felt appellee had satisfied this burden of proof. We must agree. The Nicolaou disclosure is a.particularly poor one in that it is difficult to follow, contains conflicting statements, and is often technically and theoretically inaccurate. Appellee suggests that the board cited Brand v. Thomas to support the position" }, { "docid": "14518759", "title": "", "text": "glass host is described as such in appellant’s specification. [Id, 465 F.2d at 903, 59 CCPA at 1247, 175 USPQ at 111.] The Proceedings Below On remand, the board first considered whether Snitzer’s disclosure described the terminal portion of the counts. It found that this portion is neither expressly described in the disclosure nor suggested by the prior art and evidence of record. It also found no evidence that the parameters applicable to lasers known at the time Snitzer’s application was filed could be applied to trivalent ytterbium glass lasers without undue experimentation. The board next considered whether Snitzer’s disclosure would have been enabling. It found that while one skilled in the art, using Snitzer’s disclosure, could determine the characteristics of the pumping source to obtain laser action with a trivalent ytterbium glass laser, there was still not enough information to construct an operable trivalent ytterbium glass laser without undue experimentation. The board pointed to Snitzer’s own affidavit under 37 CFR 1.132 to show the unpredictability, for successful lasing action, of activated glass-like host material. It also found that operating parameters of such a laser, which functions at optical frequencies measured in millimicrons, are so “critically interrelated” that undue experimentation would be necessary without their precise specification. Finally, it noted that Etzel requires operation at low temperatures and that this is not disclosed by Snitzer. Accordingly, the board held that Snitzer’s disclosure did not describe the terminal portion of the counts and that it was not an enabling disclosure. OPINION The substantive issues are whether appellant’s disclosure would have enabled one skilled in the art to practice the invention of the counts and whether it describes the terminal portion of the counts. Before reaching these issues, however, we must first determine which party has the burden of proof, a question on which the parties disagree. Burden of Proof Appellant contends that the burden of proof on the enablement issue is on Etzel, as the junior party, whose motion to dissolve on this issue was denied. We cannot agree. Appellant, as the party copying claims from a patent for the purpose" }, { "docid": "486443", "title": "", "text": "in polycrystalline growth or result in the formation of unusable germanium islands. Appellant takes exception to every aspect of the board’s decision, but in the main contends that the board erred in placing the burden on appellant and in failing to recognize that there were two principal issues in the case. That is, appellant asserts that the question is not whether anyone following known techniques without any disposition to grow epitaxial layers would automatically get epitaxy, but (a) whether one skilled in the art reading Tummers’ specification would understand it to mean epitaxy and (b) whether he would then know how to accomplish that objective. Tummers takes the position that if one wanted to grow an epitaxial layer, then he could do so with Tum-mers’ teachings augmented by the existing art knowledge, and anyone skilled in the art following Tummers’ teachings would want to grow a single crystal epitaxial layer because nobody has ever made commercial transistors of polycrystalline material. As to whether appellant has the burden of showing that he can make the count, we think clearly he does. Appellant not only copied the claim from appellees’ patent but also relies on inherency of the disclosure, as supplemented by the prior art, for support of the count. Under such circumstances appellant has a twofold burden. As this court said in Dreyfus v. Sternau, 53 CCPA 1050, 357 F. 2d 411, 149 USPQ 63 (1966): Eirst, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. * * * There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. * - * Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. This doctrine, which the board followed in the instant case, has been reaffirmed by this court in several recent cases. See, Reed v. Tornquist, 58 CCPA" }, { "docid": "4451681", "title": "", "text": "in 1960 would not inevitably produce an epitaxial layer as required by the count, but could result in polycrystalline growth or result in the formation of unusable germanium islands. Appellant takes exception to every aspect of the board’s decision, but in the main contends that the board erred in placing the burden on appellant and in failing to recognize that there were two principal issues in the case. That is, appellant asserts that the question is not whether anyone following known techniques without any deposition to grow epitaxial layers would automatically get epitaxy, but (a) whether one skilled in the art reading Tummers’ specification would understand it to mean epitaxy and (b) whether he would then know how to accomplish that objective. Tummers takes the position that if one wanted to grow an epitaxial layer, then he could do so with Tummers’ teachings augmented by the existing art knowledge, and anyone skilled in the art following Tum-mers’ teachings would want to grow a single crystal epitaxial layer because nobody has ever made commercial transistors of polycrystalline material. As to whether appellant has the burden of showing that he can make the count, we think clearly he does. Appellant not only copied the claim from appellees’ patent but also relies on inherency of the disclosure, as supplemented by the prior art, for support of the count. Under such circumstances appellant has a twofold burden. As this court said in Dreyfus v. Sternau, 357 F.2d 411, 53 CCPA 1050 (1966) : First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. * * * There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. * * * Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. This doctrine, which the board followed in the instant case, has been" }, { "docid": "14518761", "title": "", "text": "of instituting interference proceedings, must show by clear and convincing evidence that his disclosure supports the counts. Tummers v. Kleimack, 455 F.2d 566, 59 CCPA 846, 172 USPQ 592 (1972); Gubelmann v. Gang, 408 F.2d 758, 56 CCPA 1013, 161 USPQ 216 (1969); Dreyfus v. Sternau, 357 F.2d 411, 53 CCPA 1050, 149 USPQ 63 (1966); Crome v. Morrogh, 239 F.2d 390, 44 CCPA 704, 112 USPQ 49 (1956). The denial of appellees’ motion to dissolve did not shift the burden. As this court stated in Tummers v. Kleimack, supra, 455 F.2d at 569, 59 CCPA at 850, 172 USPQ at 594: We find absolutely no merit to appellant’s contention that the examiner’s decision denying appellees’ motion to dissolve switched the burden to appellees. The examiner’s decision merely left the issue for the board to resolve after testimony was taken. • Although in the instant case no testimony was taken after the motion to dissolve was denied, the “examiner’s decision merely left the issue for the board to resolve.” Appellant has cited a number of cases in his brief and at the oral hearing for the proposition that Etzel has the burden of proof on the enablement issue. However, none of these cases is helpful to appellant. In Field v. Knowles, 183 F.2d 593, 37 CCPA 1211, 86 USPQ 373 (1950), the issue was inoperability — not enablement — of the disclosure of the application placed in interference. This court stated that the disclosure is presumed to be operable. Although the court said that the junior party had the burden of proof by a preponderance of the evidence on this issue, it should be noted that it was the junior party, Field, who raised the issue. In Nicolaou v. Cooperman, 438 F.2d 993, 996, 58 CCPA 938, 941, 168 USPQ 717, 719 (1971), this court clearly indicated that the burden of proof on the issue of operability rests on the party raising it, whether he is the junior or senior party. Similarly, the party “raising” the interference by copying claims has the burden of proof on enablement. In Coast v." }, { "docid": "7015263", "title": "", "text": "The critical defect in Reese’s argument is the failure to link the analyses conducted by Ledoux to all the limitations of the count in interference. As pointed out by the board, supra, Ledoux was not told, nor. could a determination be made, of the process by which the samples were prepared. (5) Additional Documents and Oral Testimony as “Corroboration” Reese contends that a number of other documents corroborate Katz’s May 1969 tests. These include various correspondence among Reese, Rodger, and Katz; correspondence between Katz and Ledoux; Reese’s own notebook; Ledoux’s billing records and reports of analyses; and Reese’s patent disclosure. We see no merit in the contention, because all corroborative information contained in such documents relevant to actual reduction to practice of the count is dependent on information available solely from Katz. There is no relevant information that was generated independently. (6) Failure of Reese’s Parent Application to Support the Count The board determined that Reese’s parent application does not disclose the invention of the count in interference. This issue involves the question of whether at least some of the Fe+2 is in the stripping solution when it comes in contact with the organic extractant and whether the Reese parent application supports such a count interpretation. The board said: Where an applicant alleges he is entitled to rely upon a previously filed application under 35 USC 120, the parent application must comply with the first paragraph of 35 USC 112. Swain v. Crittendon, 51 CCPA 1459, 332 F.2d 820, 141 USPQ 811 (1964); Fontijn v. Okamoto, 518 F.2d 610, 186 USPQ 97 (CCPA 1975). The parent application must clearly support the counts. Cf. Jepson v. Coleman, 50 CCPA 1051, 314 F.2d 533, 136 USPQ 647 (1963). Every limitation of a count is material. Storchheim v. Daugherty, 56 CCPA 1147, 410 F.2d 1393, 161 USPQ 679 (1969). Where support is based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the results set forth in the counts, it must invariably happen. Gubelmann v. Gang, [56 CCPA 1013], 408 F.2d 758, 161 USPQ 216 (CCPA" }, { "docid": "4451682", "title": "", "text": "polycrystalline material. As to whether appellant has the burden of showing that he can make the count, we think clearly he does. Appellant not only copied the claim from appellees’ patent but also relies on inherency of the disclosure, as supplemented by the prior art, for support of the count. Under such circumstances appellant has a twofold burden. As this court said in Dreyfus v. Sternau, 357 F.2d 411, 53 CCPA 1050 (1966) : First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. * * * There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. * * * Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. This doctrine, which the board followed in the instant case, has been reaffirmed by this court in several recent cases. See, Reed v. Tornqvist, 436 F.2d 501, 58 CCPA 864 (1971); Noyce v. Kilby, 416 F.2d 1391, 57 CCPA 1156 (1969), and Gubelmann v. Gang, 408 F.2d 758, 56 CCPA 1013 (1969). We find absolutely no merit to appellant’s contention that the examiner’s decision denying appellees’ motion to dissolve switched the burden to appellees. The examiner’s decision merely left the issue for the board to resolve after testimony was taken. We also agree with the board that appellant has failed to meet his burden of proof in this case. Although we see nothing wrong with the board’s approach, since appellant considers two main issues to be presented, we will discuss them as appellant has presented them. First, appellant asserts that one skilled in the art reading the Tummers’ disclosure would know epitaxial layers were inherently intended because all known bipolar transistors were built with single crystal layers. While we have no doubt that one of ordinary skill in the art would have thought of epitaxial layers if" }, { "docid": "14518764", "title": "", "text": "issue of whether the senior party-copier inherently disclosed a limitation of the counts, this court held that the burden of proof was on the junior party (Pew), who had raised the issue of inherency by filing a motion to dissolve the interference with respect to the senior party’s right to make the counts. This assignment of the burden of proof, however, has not been followed in the later cases. For example, in Dreyfus v. Sternau, supra, which also involved the issue of inherency in the disclosure of the senior party-copier raised by the junior party on a motion to dissolve the interference, this court said: By copying claims from an issued patent, and lacking express support for the limitations found therein, Sternau was faced with a twofold burden. First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. . Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. [357 F.2d at 415, 53 CCPA at 1054, 149 USPQ at 66.] Accord, Tummers v. Kleimack, supra, Gubelmann v. Gang, supra. Description Issue Appellant argues that the terminal portion of the counts merely describes inherent characteristics of the trivalent ytterbium glass laser. He points to his affidavit under 37 CFR 1.205 and to a publication by D. McClure (D. McClure, Electronic Spectra of Molecules and Ions in Crystals, Part II, Spectra of Ions in Crystals, 9 Solid State Physics 454-74 (Seitz & Turnbull ed. 1959)) for support of this position. Relevant portions of the affidavit, which includes a discussion of McClure, are set forth below: In summary of the foregoing factual matters, McClure in Fig. 18B on page 457 of Exhibit A shows trivalent ytterbium as having essentially only two energy levels; namely, an upper 2F5/2 energy level" }, { "docid": "15096870", "title": "", "text": "issue of inherency is resolved. By copying claims from an issued patent, and lacking express support for the limitations found therein, Sternau was faced with a twofold burden. First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. Jepson v. Coleman, 50 CCPA 1051, 314 F.2d 533, 136 USPQ 647. There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. Jepson v. Coleman, supra; Bierly v. Happoldt, 40 CCPA 774, 201 F.2d 955, 96 USPQ 406. Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. Crome v. Morrogh, 44 CCPA 704, 239 F.2d 390, 112 USPQ 49. There is of record an affidavit filed in behalf of Sternau, the pertinent averments of which read as follows: * * * that be has conducted and bad conducted experiments with various heat shrinkable oriented films wherein film substantially larger than the mouth of the container has been laid across the mouth of the container, the periphery of the film has been arranged around the container and heat has been applied to the periphery to shrink the film and form a closure; * * * that he has found that all of the heat shrinkable oriented film tested, as described, produced a gathered pleated skirt extending downwardly around the container when the periphery of the film was arranged around the container ; * * * that he has found that all of the heat shrinkable oriented film tested as described produced a closure having a gathered but relatively elastic edge permitting repeated removal and replacement of the closure on the container; * * * that, as a result of his experience and experimentation, he believes that any of the available heat shrinkable oriented films can be laid across and arranged around a container to form a gathered pleated skirt" }, { "docid": "10932454", "title": "", "text": "It has been found preferable to use small diameter tubing throughout the entire blanket and to connect this tubing to small compact headers or junction units 16, 18 rather than having large diameter header tubes extend along the edge of the blanket. The reason for this is that if long header tubes are used, they must be large enough in diameter to carry the liquid for substantially all of the circuits 12 without appreciable pressure drop. On the other hand, tubing of the required diameter is very likely to kink and materially reduce or even •completely cut off the flow of liquid if made flexible enough to conform to folds and the like in the blanket. The header units 16,18 can be very compact assemblies, fully rigid to obviate kinking and yet extending over no more than one or two square inches of blanket surface area. Priority of invention was accordingly awarded to appellees. Appellant, in urging reversal of tifie board’s decision, contends tfiat tfie above paragraph in the Coleman et al. application, which appellant alleges as the “critical paragraph,” is only a criticism of prior art structures. He further contends that the five counts involved in the interference are limited to features not mentioned in the “critical paragraph.” We are faced with one issue here. Appllees stated it very concisely in their brief wherein they said: The only question raised in this forum is the correctness of the Board of Patent Interferences decision that senior party Coleman and MaoOracken is entitled to make the claims which are the Counts of the Interference. When one copies claims from a patent for the purpose of instituting interference proceedings, in order to be successful, that person’s application must clearly support those counts. See Brand v. Thomas, 25 CCPA 1053, 96 F. 2d 301, 37 USPQ 505; Crome v. Morrogh, 44 CCPA 704, 239 F. 2d 390, 112 USPQ 49. There must be no doubt that an applicant discloses each and every limitation of the claims and all doubts must be resolved against the copier. See Louis H. Segall v. Marion W. Sims" }, { "docid": "14518762", "title": "", "text": "cases in his brief and at the oral hearing for the proposition that Etzel has the burden of proof on the enablement issue. However, none of these cases is helpful to appellant. In Field v. Knowles, 183 F.2d 593, 37 CCPA 1211, 86 USPQ 373 (1950), the issue was inoperability — not enablement — of the disclosure of the application placed in interference. This court stated that the disclosure is presumed to be operable. Although the court said that the junior party had the burden of proof by a preponderance of the evidence on this issue, it should be noted that it was the junior party, Field, who raised the issue. In Nicolaou v. Cooperman, 438 F.2d 993, 996, 58 CCPA 938, 941, 168 USPQ 717, 719 (1971), this court clearly indicated that the burden of proof on the issue of operability rests on the party raising it, whether he is the junior or senior party. Similarly, the party “raising” the interference by copying claims has the burden of proof on enablement. In Coast v. Dubbs, 88 F.2d 734, 737, 24 CCPA 1023, 1028, 33 USPQ 91, 94 (1937), this court considered the question of “the burden of proof relative to inherency, and inoperativeness as it bears upon inherency.” However, the court’s discussion of the burden of proof on inherency was dictum, since it found that Dubbs, senior party and copier, had established a prima facie showing of inherency: Under all the facts of this case, we think a prima facie showing of inherency was made in the application of Dubbs, and that it was, therefore, incumbent upon Coast as the junior party to show lack of inherency . . . . [Id. 88 F.2d at 738, 24 CCPA at 1030, 33 USPQ at 96.] The burden of proof (by clear and convincing evidence) on the description issue also lies with appellant, as the party copying claims from a patent. At oral hearing, appellant argued that the burden rests upon appellees, citing Pew v. Gard, 97 F.2d 591, 25 CCPA 1326, 38 USPQ 115 (1938). In Pew, which involved the" }, { "docid": "15096869", "title": "", "text": "cover having a relatively elastic edge. We concur in this conclusion. However, we are not persuaded that there is sufficient ground for holding that Sternau’s cover must inherently have an elastic edge. In Sternau, we are faced with an application completely devoid of specific teachings as to the crucial matters in question. Were there some indication of the specific materials employed, or the process conditions to which the broad class of materials are subjected, it might be possible to establish that the limitations in the count are inherently met. But in these matters the application is silent. Moreover, we cannot find in Sternau any indication that he desired an inner cover which could be removed and reapplied to the container. Such a teaching might provide a basis for an inference that the inner cover did in fact have a relatively elastic edge. No doubt, if such were within his contemplation, one of ordinary skill in the art could devise process conditions to achieve such a result. But that is not the criterion upon which the issue of inherency is resolved. By copying claims from an issued patent, and lacking express support for the limitations found therein, Sternau was faced with a twofold burden. First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. Jepson v. Coleman, 50 CCPA 1051, 314 F.2d 533, 136 USPQ 647. There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. Jepson v. Coleman, supra; Bierly v. Happoldt, 40 CCPA 774, 201 F.2d 955, 96 USPQ 406. Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. Crome v. Morrogh, 44 CCPA 704, 239 F.2d 390, 112 USPQ 49. There is of record an affidavit filed in behalf of Sternau, the pertinent averments of which read as follows: * * * that be" }, { "docid": "14518760", "title": "", "text": "It also found that operating parameters of such a laser, which functions at optical frequencies measured in millimicrons, are so “critically interrelated” that undue experimentation would be necessary without their precise specification. Finally, it noted that Etzel requires operation at low temperatures and that this is not disclosed by Snitzer. Accordingly, the board held that Snitzer’s disclosure did not describe the terminal portion of the counts and that it was not an enabling disclosure. OPINION The substantive issues are whether appellant’s disclosure would have enabled one skilled in the art to practice the invention of the counts and whether it describes the terminal portion of the counts. Before reaching these issues, however, we must first determine which party has the burden of proof, a question on which the parties disagree. Burden of Proof Appellant contends that the burden of proof on the enablement issue is on Etzel, as the junior party, whose motion to dissolve on this issue was denied. We cannot agree. Appellant, as the party copying claims from a patent for the purpose of instituting interference proceedings, must show by clear and convincing evidence that his disclosure supports the counts. Tummers v. Kleimack, 455 F.2d 566, 59 CCPA 846, 172 USPQ 592 (1972); Gubelmann v. Gang, 408 F.2d 758, 56 CCPA 1013, 161 USPQ 216 (1969); Dreyfus v. Sternau, 357 F.2d 411, 53 CCPA 1050, 149 USPQ 63 (1966); Crome v. Morrogh, 239 F.2d 390, 44 CCPA 704, 112 USPQ 49 (1956). The denial of appellees’ motion to dissolve did not shift the burden. As this court stated in Tummers v. Kleimack, supra, 455 F.2d at 569, 59 CCPA at 850, 172 USPQ at 594: We find absolutely no merit to appellant’s contention that the examiner’s decision denying appellees’ motion to dissolve switched the burden to appellees. The examiner’s decision merely left the issue for the board to resolve after testimony was taken. • Although in the instant case no testimony was taken after the motion to dissolve was denied, the “examiner’s decision merely left the issue for the board to resolve.” Appellant has cited a number of" }, { "docid": "6375547", "title": "", "text": "Under these conditions, substantial guard hair removal is effected without damage to the fine underfur. Though the invention has been described with reference to preferred embodiments, it will be appreciated that various adaptations and modifications will be within the spirit and scope of the invention as distinctly defined in the claims hereinbelow. For example, though such variables as contact time, pressure of contact and stripping speed are all important, these factors may vary according to the particular pelt undergoing treatment and the adhesive used. It is within the routine skill of an operator to quickly and easily optimize these variables in specific fur treatments. [Emphasis added.] We agree with Pingree that Hull’s disclosure contains no explicit requirement that substantial contact between the adhesive and the fine fur on the seal skin be avoided while practicing the process. The board opinions refer to no such express disclosure. Therefore, the disputed limitation must find inherent support in the quoted portions of Hull’s application for the award of priority to Hull to be sustained. Hull has a twofold burden of proof on this point. As this court said in Dreyfus v. Sternau, 357 F.2d 411, 415, 53 CCPA 1050, 1054 (1966): First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. Jepson v. Coleman, 314 F.2d 533, 50 CCPA 1051 [(1963)]. There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. Jepson v. Coleman, supra; Bierly v. Happoldt, 201 F.2d 955, 40 CCPA 774 [(1953)]. Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. Crome v. Morrogh, 239 F.2d 390, 44 CCPA 704 [(1956)]. In Hansgirg v. Kemmer, 102 F.2d 212, 26 CCPA 937 (1939), the court said (emphasis in original): Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may" }, { "docid": "2110214", "title": "", "text": "invention is the only matter within the competence of the Board of Patent Interferences. See Ferree v. Shephard, 384 F.2d 1019, 55 C.C.P.A. 848 (1967). This restriction of the Board’s jurisdiction does not, however, prevent it from determining certain matters “ancillary” to the basic question of priority. The Board’s decision on the ancillary question of Westerman’s right to make the counts of the interference was one of the independent grounds for its award. Dumbaugh raised the question initially during the usual motion period by moving to dissolve the interference. The Primary Examiner denied Dumbaugh’s motion, holding that Westerman’s disclosure “comprehends within its confines the AC squirrel cage motor.” In so doing, however, the Primary Examiner applied the wrong rule of law. As the Board correctly pointed out in its opinion, “a sufficient basis [to support the copied claims] is provided only if the specification is so worded that the necessary and only reasonable construction to be given the disclosure by one skilled in the art is one which will lend clear support to the claim” (emphasis in original). The question is not whether the applicant party’s application can be read to include the particular device of the patent, but whether it necessarily discloses the device. Gubelmann v. Gang, C.C.P.A., 408 F.2d 758, 766 (1969); Dreyfus v. Sternau, 357 F.2d 411, 415, 53 C.C.P.A. 1050 (1966); Jepson v. Coleman, 314 F.2d 533, 536, 50 C.C.P.A. 1051 (1963); Crome v. Morrogh, 239 F.2d 390, 392, 44 C.C.P.A. 704 (1956). Measuring the Westerman application by this criterion, the Board concluded that it failed to disclose as a necessary element the use of an A.C. squirrel cage induction motor. Rather, the Board found that the application might also be read to teach the use of a wound rotor motor — the other type of A.C. induction motor. Plaintiff expended most of its energies before the district court attempting to refute the Board’s conclusion by evidence of the character and amount required by Morgan v. Daniels. Thus, it sought to demonstrate by the testimony of experts that the phrase “ordinary induction motor,” which appeared in" }, { "docid": "10932455", "title": "", "text": "alleges as the “critical paragraph,” is only a criticism of prior art structures. He further contends that the five counts involved in the interference are limited to features not mentioned in the “critical paragraph.” We are faced with one issue here. Appllees stated it very concisely in their brief wherein they said: The only question raised in this forum is the correctness of the Board of Patent Interferences decision that senior party Coleman and MaoOracken is entitled to make the claims which are the Counts of the Interference. When one copies claims from a patent for the purpose of instituting interference proceedings, in order to be successful, that person’s application must clearly support those counts. See Brand v. Thomas, 25 CCPA 1053, 96 F. 2d 301, 37 USPQ 505; Crome v. Morrogh, 44 CCPA 704, 239 F. 2d 390, 112 USPQ 49. There must be no doubt that an applicant discloses each and every limitation of the claims and all doubts must be resolved against the copier. See Louis H. Segall v. Marion W. Sims et al., 47 CCPA 886, 276 F. 2d 661, 125 USPQ 394. It is not a question of whether one skilled in the art might be able to construct the patentee’s device from the teachings of the disclosure of the application. Rather, it is a question whether the application necessarily discloses that particular device. See Crome v. Morrogh, supra. Here appellant’s device as claimed has certain limitations which must be found in the disclosure of appellees’ application if appellees are to prevail. That disclosure must teach that the blanket, among other features, has (1) a plurality of passageways; (2) a pair of flexible headers; (3) the headers in (2) extending along one end of the blanket and being generally perpendicular to the passageways in (1); (4) a plurality of flexible tubes of U-shape; (5) legs of the U disposed in the plurality of passageways; (6) one leg of the U connected to one of said flexible headers; (7) the other leg of the U connected to the other flexible header; (8) all tubes connected in" } ]

[ { "docid": "6837546", "title": "", "text": "of inventory from the perspective of Associates. Ill The second issue before us is whether the bankruptcy court was justified in equitably subordinating Associates’ claims. This court has enunciated a three-pronged test to determine whether and to what extent a claim should be equitably subordinated: (1) the claimant must have engaged in some type of inequitable conduct, (2) the misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant, and (3) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. Missionary Baptist I, 712 F.2d at 212. Three general categories of conduct have been recognized as sufficient to satisfy the first prong of the three-part test: (1) fraud, illegality or breach of fiduciary duties; (2) undercapital-ization; and (3) a claimant’s use of the debtor as a mere instrumentality or alter ego. Id. In essence, the bankruptcy court found that once Associates realized Clark’s desperate financial condition, Associates asserted total control and used Clark as a mere instrumentality to liquidate Associates' unpaid loans. Moreover, it did so, the trustee argues, to the detriment of the rights of Clark’s other creditors. Associates contends that its control over Clark was far from total. Associates says that it did no more than determine the percentage of advances as expressly permitted in the loan agreement; it never made or dictated decisions as to which creditors were paid. Thus, argues Associates, it never had the “actual, participatory, total control of the debtor” required to make Clark its instrumentality under Krivo Industrial Supply Co. v. National Distillers & Chemical Corp., 483 F.2d 1098, 1105 (5th Cir.1973), modified factually, 490 F.2d 916 (5th Cir.1974) (elaborated in Valdes v. Leisure Resource Group, 810 F.2d 1345, 1354 (5th Cir.1987)).' If it did not use Clark as an instrumentality or engage in any other type of inequitable conduct under Missionary Baptist I, argues Associates, then it cannot be equitably subordinated. A We first consider whether Associates asserted such control over the activities of Clark that we should consider that it was using Clark as" } ]

[ { "docid": "16850385", "title": "", "text": "the Fifth Circuit. AtlanticRancher, 279 B.R. at 439. This Court added: In In re Fabricators, Inc., 926 F.2d 1458 (5th Cir.1991), the Fifth Circuit reiterated its three-prong test for equitable subordination first set forth in Mobile Steel as follows: (1) the claimant must have engaged in some type of inequitable conduct; (2) the misconduct must have resulted in injury to the creditors or conferred an unfair advantage on the claimant; and (3) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. 926 F.2d at 1464-65 (citing Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 700 (5th Cir.1977)). AtlanticRancher, 279 B.R. at 439. In Capitol Bank & Trust Co. v. 604 Columbus Ave. Realty Trust (In re 604 Columbus Ave. Realty Trust), 968 F.2d 1332 (1st Cir.1992), the United States Court of Appeals for the First Circuit, also citing In re Fabricators, Inc., 926 F.2d 1458 (5th Cir. 1991), elaborated on the test as follows: Although the remedy of equitable subordination has been applied relatively infrequently, it is usually directed towards misconduct arising in three situations: when a fiduciary of the debtor misuses his position to the disadvantage of other creditors; when a third party dominates or controls the debtor to the disadvantage of others; or when a third party defrauds the other creditors. 968 F.2d at 1359-60. The First Circuit added: Whether the creditor is an insider or fiduciary of the debtor is fundamentally important to the level of scrutiny that courts apply to allegations of misconduct against a creditor. See In re Fabricators, Inc., 926 F.2d 1458, 1465 (5th Cir. 1991). See also DeNatale & Abram at 424 (“The creditor’s duty of fair dealing is increased in the precise degree that the creditor has power and control over the debtor’s affairs.”). Claims arising from dealings between a debtor and an insider are rigorously scrutinized by the courts. Fabricators, 926 F.2d at 1465. On the other hand, if the claimant is not an insider, “then evidence of more egregious misconduct such as fraud, spoliation or overreaching is necessary.” Id. (citing" }, { "docid": "15942887", "title": "", "text": "at 510-4 (15th ed. Revised 2002); see also Bostian v. Schapiro (In re Kansas City Journal-Post Co.), 144 F.2d 791, 800 (8th Cir.1944) (court views claims “through the eyes of equity and dealing with them on the basis of equitable considerations to prevent injustice or unfairness in the bankruptcy situation”). 15. “This task by nature ‘require[s] the court to make extremely subjective judgments as to whether a party has acted opportunistically.’” Matter of Lifschultz Fast Freight, 182 F.3d 339, 349 (7th Cir.1997) (quoting David A. Skeel, Jr., “Markets, Courts, and the Brave New World of Bankruptcy Theory,” 1993 Wis. L.Rev. 465, 506). 16. A court may only equitably subordinate in reordering the priorities of bankruptcy claims — the doctrine does not permit disallowance of claims. 80 Nassau Associates v. Crossland Fed. Sav. Bank (In re 80 Nassau Associates), 169 B.R. 832, 837 (Bankr.S.D.N.Y.1994). 17. Equitable subordination is a remedial, not a penal measure, and should be used only sparingly. See United States Abatement Corp. v. Mobil Exploration & Producing, U.S., Inc. (In re United States Abatement Corp.), 39 F.3d 556, 561 (5th Cir.1994). 18. The three-pronged test for subordination of claims is set forth in Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 699-705 (5th Cir.1977), the seminal case on equitable subordination. These elements, which the plaintiff has the burden of showing, are: (1) “The claimant must have engaged in some type of inequitable conduct;” (2) “The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant;” and (3) “Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code.” Id. at 700. 19. Although equitable subordination is a seldom-applied remedy, there are generally three situations pursuant to which courts will apply the doctrine: when a fiduciary of the debtor misuses his position to the disadvantage of others; when a third party dominates or controls the debt- or to the disadvantage of others; or when a third party defrauds other creditors. Capitol Bank & Trust Co. v. 604 Columbus Ave. Realty Trust," }, { "docid": "4593727", "title": "", "text": "out by the Fifth Circuit in Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 700 (5th Cir.1977):(1) the defendant engaged in inequitable conduct; (2) that conduct injured other creditors or conferred an unfair advantage on the defendant; and (3) subordination of the defendant’s claim is not otherwise inconsistent with the Code. See also Sure-Snap Corp. v. State Street Bank & Trust Co., 948 F.2d 869, 876 (2d Cir.1991); In re Enron Corp., 379 B.R. 425, 433 (S.D.N.Y.2007) (Scheindlin, J.); Sunbeam, 284 B.R. at 363. “A bankruptcy court’s general equitable power to adjust equities among creditors in relation to the liquidation results is the source of the bankruptcy court’s power to subordinate claims.” Sunbeam, 284 B.R. at 363. The Court will evaluate each of these factors in turn. i. Inequitable Conduct To satisfy the first prong of the test, a court must find (1) fraud, illegality, or breach of fiduciary duty, (2) undercapi-talization, or (3) control or use of the debt- or as an alter ego for the benefit of the claimant. See AlphaStar, 383 B.R. at 276; Sunbeam, 284 B.R. at 363 (“This is accomplished by permitting the court to subordinate an otherwise legally valid claim when the claimant has engaged in conduct that makes it unjust or unfair for the claimant to share pro rata with similarly situated creditors.”). When the defendant is an insider, his conduct is subject to greater scrutiny. See AlphaStar, 383 B.R. at 276. Conversely, “[a] a higher level of proof is required to equitably subordinate the claim of a party that is neither an insider of the debtor, nor a fiduciary to the debtor or other creditors.” Sunbeam, 284 B.R. at 363-64. As a result, “[w]hen a non-insider or non-fiduciary is involved, courts have required that a claimant’s conduct be egregious and severely unfair to other creditors before its claim will be equitably subordinated.” Id. at 364. “The conduct required has been described as substantial misconduct tantamount to fraud, misrepresentation, overreaching or spoilation.” Id. “Few cases find that non-insider, non-fiduciary claimants meet this standard.” Id. ii. Injury to Creditors or Unfair" }, { "docid": "2941608", "title": "", "text": "1990 WL 115606, at *6 (S.D.N.Y. Aug.10, 1990); accord Beneficial Commercial Corp. v. Murray Glick Datsun, Inc., 601 F.Supp. 770, 772 (S.D.N.Y.1985); see generally Restatement (Second) of Torts § 876 (1977). The Second Cause of Action does not identify any underlying tortious conduct. It implies, wrongly, that the mere continuation of Global’s operations violated a legal duty. Without a primary violation, there is no wrongdoing to aid and abet. Accordingly, the Second Cause of Action is dismissed for failure to state a claim. 3. Third Cause of Action/Equitable Subordination The Third Cause of Action alleges that Atlantic Bank’s claims should be equitably subordinated under 11 U.S.C. § 510(c). The remedy of equitable subordination is available where (1) the claimant engaged in inequitable conduct, (2) the misconduct caused injury to the creditors or conferred an unfair advantage on the claimant, and (3) equitable subordination is consistent with bankruptcy law. In re Mobile Steel Co., 563 F.2d 692, 700 (5th Cir.1977). Equitable subordination is generally limited to cases involving fraud, illegality or breach of fiduciary duty, underca-pitalization or control or use of the debtor as an alter ego for the benefit of the claimant. ABF Capital Mgt. v. Kidder Peabody & Co., Inc. (In re (Granite Partners, L.P.), 210 B.R. 508, 514 (Bankr. S.D.N.Y.1997). The party seeking to equitably subordinate a non-insider’s claim must show that (1) “the creditor has dominated or controlled the debtor” or (2) “has committed some breach of an existing, legally recognized duty arising under the contract, tort or other area of law.” In re 80 Nassau Assocs., 169 B.R. 832, 840 (Bankr.S.D.N.Y.1994). In the absence of domination or control by the creditor or breach of an existing legally recognized duty, an allegation that a lender knew or should have known that the loan would render the debtor insolvent is insufficient to equitably subordinate the lender’s claim. In re Dry Wall Supply, Inc., 111 B.R. 933, 938 (D.Colo.1990). As stated, the Complaint does not charge Atlantic Bank with any wrongful or inequitable conduct, or allege that it acquired control of the debtor, and thereby became an insider. See" }, { "docid": "18492809", "title": "", "text": "(i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act. In the Matter of Mobile Steel Co., 563 F.2d at 700 (citations omitted). In connection with (i), as in this case, the inequitable conduct which must be shown need not necessarily be related to the acquisition or assertion of the claim. Id. (See also Westgate-Califomia Corp. v. First National, 650 F.2d 1040 [9th Cir.1981]). The basis for these rules of equitable subordination is that the bankruptcy court has the equitable power and the duty “to sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.” Pepper v. Litton, 308 U.S. at 303, 60 S.Ct. at 243. Under the first element, inequitable conduct, three categories of inequitable conduct have been recognized, namely 1) fraud, illegality and breach of fiduciary duties; 2) substitution of debt for capital when a company is undercapitalized; and 3) the claimant’s use of the debtor as its alter ego instrumentality. In re Missionary Baptist Foundation of America, 712 F.2d 206, 212 (5th Cir.1983); In re Beverages International Ltd., 50 B.R. 273, 281 (Bankr.D.Mass.1985). As stated in In re EMB Associates, Inc., 92 B.R. 9 (Bankr.D.R.I.1988), “the fundamental aim of equitable subordination is to undo or offset any inequity in the claim position of a creditor that will produce injustice or unfairness to other creditors in terms of the bankruptcy results”. In re Kansas City Journal-Post Co., 144 F.2d 791, 800 (8th Cir.1944). Also, as pointed out in In re EMB Associates, Inc. at 15, this case may involve the conduct of fiduciaries or insiders, as related to the transaction between the Debtor and Seminole. The Code defines an insider as an officer, director or person in control of the debtor. 11 U.S.C. Section 101(30)(B). However, this definition is merely illustrative and the term insider should" }, { "docid": "13475039", "title": "", "text": "claims. In re W.T. Grant Co., 699 F.2d 599, 609-610 (2d Cir.1983), cert. denied, 464 U.S. 822, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983). Recognizing that traditionally, equitable subordination had been limited to cases involving the three circumstances described above — (1) fraud, illegality or breach of fiduciary duty; (2) undercapitali- zation; or (3) control or use of the debtor as an alter ego for the benefit of the claimant, Granite Partners, 210 B.R. at 514; 80 Nassau Assocs., 169 B.R. at 838— Judge Bernstein noted: [I]t is not enough to allege simply that the defendant engaged in “inequitable conduct”; the party seeking equitable subordination must allege conduct that fits within one of these three paradigms. Granite Partners, 210 B.R. at 515 (citing In re After Six, Inc., 177 B.R. 219, 232 (Bankr.E.D.Pa.1995)). He further noted that courts had described the degree of wrongful conduct warranting equitable subordination of an ordinary creditor’s claim as “gross and egregious,” “tantamount to fraud, misrepresentation, overreaching or spoliation” or “involving moral turpitude.” Id. After describing the equitable subordination cases at length in 80 Nassau Associates, Judge Bernstein then observed: It appears, therefore, that there is no different or heightened standard to judge a non-insider/non fiduciary’s conduct; there are just fewer traditional grounds available.... Neither underca-pitalization nor breach of fiduciary duty applies. Thus, unless the claimant controls the debtor, and exercises that control to gain an unfair advantage, the proponent of equitable subordination must show wrongful conduct involving fraud, illegality or some other breach of a legally recognized duty. 169 B.R. at 839. He thereafter stated: Hence, the standard of inequitable conduct that justifies subordination of a non-insider/non-fiduciary’s claim can be summarized in the following manner: unless the creditor has dominated or controlled the debtor to gain an unfair advantage, his claim will be subordinated, based upon inequitable conduct, only if the claimant has committed some breach of an existing, legally recognized duty arising under contract, tort, or other area of law. In commercial cases, the proponent must demonstrate a substantial breach of contract and advantage-taking by the creditor.-... In the absence of a contractual" }, { "docid": "10219113", "title": "", "text": "the debtor’ “(D) if the debtor is a municipality, elected official of the debtor or relative of an elected official of the debtor; “(E) affiliate, or insider of an affiliate as if such affiliate were the debtor; and “(F) managing agent of the debtor.” 11 U.S.C. § 101(28) (1984). The Code also defines an affiliate as an entity that controls twenty per cent of the debtor’ stock, or is controlled by the debtor to the same extent. 11 U.S.C. § 101(2) (1984); L. King, 3 Collier On Bankruptcy, H 510.5[3], at 510-12-13 (15th ed. Supp.1984). The court must closely examine the claimant’s relationship to the debtor to determine whether the claimant has used an opportunity to adjust its position in such a way that other creditors are prejudiced. Id. at 510-13-14. However, the claimant’s status as an insider, affiliate or controlling entity will not automatically require subordination. Id. To establish that subordination is an appropriate remedy the following elements must be established: (i) the claimant must have engaged in some type of inequitable conduct; (ii) the misconduct must have resulted to the creditors of the debtor or conferred an unfair advantage on the claimant; (iii) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act. In re Mobile Steel Co., 563 F.2d 692, 700 (5th Cir.1977). The courts have recognized at least three general categories of inequitable misconduct warranting equitable subordination: (1) fraud, illegality and breach of fiduciary duties; (2) substitution of debt for capital when a company is un-dercapitalized; and (3) the claimant’s use of the debtor as its alter ego or instrumentality. See L. King, 3 Collier on Bankruptcy, 11 51005[1], [2], [3], at 510-08-14 (15th ed. Supp.1984). In re Missionary Baptist Foundation of America, Inc., 712 F.2d 206, 212 (5th Cir.1983). In determining whether the first element is satisfied, the requisite inequitable conduct need not be related to the acquisition of the disputed claim as long as it is directed to the debtor or its creditors. In re Sepco, Inc., 36 B.R. 279, 287 (Bankr.D.S.D.1984) (bank’s inequitable conduct consisted of misrepresentation" }, { "docid": "10219114", "title": "", "text": "the misconduct must have resulted to the creditors of the debtor or conferred an unfair advantage on the claimant; (iii) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act. In re Mobile Steel Co., 563 F.2d 692, 700 (5th Cir.1977). The courts have recognized at least three general categories of inequitable misconduct warranting equitable subordination: (1) fraud, illegality and breach of fiduciary duties; (2) substitution of debt for capital when a company is un-dercapitalized; and (3) the claimant’s use of the debtor as its alter ego or instrumentality. See L. King, 3 Collier on Bankruptcy, 11 51005[1], [2], [3], at 510-08-14 (15th ed. Supp.1984). In re Missionary Baptist Foundation of America, Inc., 712 F.2d 206, 212 (5th Cir.1983). In determining whether the first element is satisfied, the requisite inequitable conduct need not be related to the acquisition of the disputed claim as long as it is directed to the debtor or its creditors. In re Sepco, Inc., 36 B.R. 279, 287 (Bankr.D.S.D.1984) (bank’s inequitable conduct consisted of misrepresentation to senior lienholder that execution of document would result in payment where agreement actually contained subordination clause). Proof of outright fraud is unnecessary. “... [the] minimum level of offending conduct appears to be conduct that shocks the conscience of the court.” De-Natale & Abram, 40 The Business Lawyer, supra, at 424. “Inequitable conduct is conduct which may be lawful, yet shocks one’s good conscience ... a secret or open fraud ... an unjust enrichment, not ... by astute ness or business acumen, but enrichment through another’s loss brought about by one’s own unconscionable, unjust, unfair, close or double dealing or foul conduct.” In re Harvest Milling Co., 221 F.Supp. 836, 838 (D.Ore.1963). A creditor’s unconscionable domination or control to the detriment of other creditors may constitute inequitable conduct. The creditor’s relationship to the debtor is important in determining whether his conduct was equitable. Where a creditor has taken control of the debtor, he assumes the fiduciary duties of management and a duty to deal fairly with other creditors. In re American Lumber Co., 5 B.R." }, { "docid": "15942888", "title": "", "text": "Abatement Corp.), 39 F.3d 556, 561 (5th Cir.1994). 18. The three-pronged test for subordination of claims is set forth in Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 699-705 (5th Cir.1977), the seminal case on equitable subordination. These elements, which the plaintiff has the burden of showing, are: (1) “The claimant must have engaged in some type of inequitable conduct;” (2) “The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant;” and (3) “Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code.” Id. at 700. 19. Although equitable subordination is a seldom-applied remedy, there are generally three situations pursuant to which courts will apply the doctrine: when a fiduciary of the debtor misuses his position to the disadvantage of others; when a third party dominates or controls the debt- or to the disadvantage of others; or when a third party defrauds other creditors. Capitol Bank & Trust Co. v. 604 Columbus Ave. Realty Trust, (In re 604 Columbus Ave. Realty Trust), 968 F.2d 1332, 1360 (1st Cir.1992). B. Inequitable Conduct 20. The level of inequitable conduct sufficient to trigger equitable subordination is not precisely defined. In re 80 Nassau Associates, 169 B.R. at 837. 21. The burden of proof on a plaintiff in proving inequitable conduct, as well as the degree of severity of the conduct, depends on whether the claimant is a fiduciary or an insider. King Distributors, Inc. v. Liberty Sav. Bank (In re Toy King Distributors), 256 B.R. 1, 196 (Bankr. M.D.Fla.2000). If the claimant is a non-fiduciary, non-insider, the burden of proof and severity of conduct necessary to support a claim for equitable subordination is considerably higher, as courts are generally “reluctant to find the requisite level of misconduct in arms-length dealings between borrowers and lenders.” In re 604 Columbus Ave. Realty Trust, 968 F.2d at 1361. 22. In the case of a non-fiduciary, non-insider, gross and egregious conduct, tantamount to fraud, misrepresentation, overreaching, spoliation or conduct involving moral turpitude are required before a court" }, { "docid": "16967331", "title": "", "text": "the misconduct has on other creditors. Mobile Steel, 563 F.2d at 700-01. Equitable subordination generally requires the satisfaction of three conditions: (1) the claimant must have “engaged in ‘some type of inequitable conduct’ (2) the misconduct must have “ ‘resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant’ and (3) subordination must “ ‘not be inconsistent with the provisions of the Bankruptcy Act.’ ” United States v. Noland, 517 U.S. 535, 538-39, 116 S.Ct. 1524, 134 L.Ed.2d 748 (1996) (quoting the Fifth Circuit’s “influential opinion” in Mobile Steel, 563 F.2d at 700). If these conditions are met, equitable subordination is applied only to the extent necessary to undo the effect of the misconduct on other creditors. Mobile Steel, 563 F.2d at 701. We noted in Lifschultz that “[i]n the context of equitable subordination, the type of conduct that has been considered inequitable generally falls within the following categories: (1) fraud, illegality, breach of fiduciary duties; (2) undercapi-talization; and (3)[the] claimant’s use of the debtor as a mere instrumentality or alter ego.” 132 F.3d at 344-45 (citations and internal quotation marks omitted). The conduct at issue here does not fit neatly into any of these categories; the bankruptcy court acknowledged as much. Nonetheless, the court equitably subordinated Garlin’s claim after characterizing Garlin’s purchase of Community Bank’s junior mortgage as “an elaborate scheme” by Kreisler and Erenberg to receive proceeds from the sale of their property “to the exclusion of their unsecured creditors.” We can put to one side whether the court’s finding of inequitable conduct was correct. Although Garlin asks us to reexamine both the finding of misconduct and the level of scrutiny the court applied in reaching it, those aspects of the bankruptcy court’s analysis ultimately do not affect our conclusion. Even accepting that Gar-lin (Kreisler and Erenberg) committed misconduct within the contemplation of this equitable doctrine, misconduct alone doesn’t justify subordination of this claim. Only misconduct that harms other creditors will suffice, and there is no evidence that Kreisler and Erenberg’s scheme harmed any of their creditors. The only creditor that" }, { "docid": "19258407", "title": "", "text": "in the non-moving party’s possession or which it knew of or relied on in connection with its complaint. Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993); Bonwit Teller, Inc. v. Jewelmasters, Inc. (In re Hooker Invs., Inc.), 162 B.R. 426, 430 (Bankr.S.D.N.Y.1993). The general elements of an equitable subordination claim are well known. The plaintiff must plead and prove, under the three-pronged test set forth in In re Mobile Steel Co., 563 F.2d 692 (5th Cir.1977), the following: a) The claimant engaged in some type of inequitable conduct; b) The misconduct caused injury to the creditors or conferred an unfair advantage on the claimant; c) Equitable subordination of the claim .is consistent with bankruptcy law. In re Mobile Steel, 563 F.2d at 700; accord United States v. Noland, — U.S. -, -, 116 S.Ct. 1524, 1526, 134 L.Ed.2d 748 (1996); see generally 4 Lawrence P. King, et al., Collier on Bankruptcy (“Collier”) ¶ 510.05[1], at 510-13 to 510-14 (15th rev. ed.1997). Traditionally, equitable subordination has been limited to cases involving (1) fraud, illegality or breach of fiduciary duty, (2) undercapitalization, or (3) control or use of the debtor as an alter ego for the benefit of the claimant. 80 Nassau Assocs. v. Crossland Fed. Sav. Bank (In re 80 Nassau Assocs.), 169 B.R. 832, 838 (Bankr.S.D.N.Y.1994); see In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332, 1359-60 (1st Cir.1992) (equitable subordination usually applies to three situations: the fiduciary’s misuse of his position to the disadvantage of creditors, third party domination and control plus disadvantage, and fraud); In re CTS Truss, Inc., 868 F.2d 146, 148-49 (5th Cir.1989) (same) see generally 4 Collier ¶ 510.05[4], at 510-16 to 510-19. Thus, it is not enough to allege simply that the defendant engaged in “inequitable conduct”; the party seeking equitable subordination must allege conduct that fits within one of these three paradigms. In re After Six, Inc., 177 B.R. 219, 232 (Bankr.E.D.Pa. 1995). Where noninsider, non-fiduciary claims are involved, the level of pleading and proof is even higher. Id. at 231-32. Although courts now agree that equitable" }, { "docid": "21549454", "title": "", "text": "of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. The intent of Congress, in referring to “principles of equitable subordination,” was to incorporate doctrines that had been well-developed in the courts for several decades preceding the enactment of the Bankruptcy Code. See S.Rep. No. 989, 95th Cong., 2d Sess., at 74 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. The Fifth Circuit summarized the criteria for equitable subordination in In re: Mobile Steel Co., 563 F.2d 692, 703 (5th Cir.1977), as follows: (1) whether the claimant engaged in fraudulent or inequitable conduct; (2) whether the conduct resulted in injury to creditors or gave an unfair advantage to the claimant; and (3) whether equitable subordination would be inconsistent with the bankruptcy law. See also 3 L. King, Collier on Bankruptcy (MB) H 510.05 (15th ed. 1979). Even if the Bank’s actions could be imputed to the FDIC, we do not believe that the unusual remedy of equitable subordination is appropriate to the facts alleged by CTS. Mobile Steel’s three-part test for equitable subordination is perhaps deceptively broad. The courts have actually confined equitable subordination of claims to three general categories of cases: those in which a fiduciary of the debtor misuses his position to the disadvantage of other creditors; those in which a third party, in effect, controls the debtor to the disadvantage of others; and those in which a third-party defrauds other creditors. See Collier on Bankruptcy 11510.05. The cases cited by CTS actually demonstrate the limited circumstances in which equitable subordination has been ordered. In Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281, a corporation’s controlling shareholder took a judgment against the corporation (debtor) with no intention of enforcing it, so that his interest would be secured over that of subsequent creditors. In Speco v. Valley State Bank, 36 B.R. 279 (D.S.D.1984), a bank fraudulently" }, { "docid": "177820", "title": "", "text": "be equitably subordinated, it does not articulate any standard by which the doctrine is to be applied. The legislative history indicates that the language of the statute is intended to “follow existing case law and leave to the courts development of this principle.” 124 Cong.Rec. Hll,095 (daily ed. September 28, 1987) (remarks of Rep. Edwards); id. at S17,412 (daily ed. October 6, 1978) (remarks of Sen. DeConcini). In establishing the circumstances justifying equitable subordination, courts have been careful to recognize that the doctrine is remedial, not penal, and should be applied “only to the extent necessary to offset the harm which ... creditors suffered as a result of the inequitable conduct.” Fabricators, Inc. v. Technical Fabricators, Inc. (In re Fabricators, Inc.), 926 F.2d 1458, 1470 (5th Cir.1991). See also 80 Nassau Assocs. v. Crossland Fed. Sav. Bank (In re 80 Nassau Assocs.), 169 B.R. 832, 840 (Bankr.S.D.N.Y.1994) (“The principle of equitable subordination ... empowers and requires the Bankruptcy Court to tailor the remedy to fit the harm. If the injury or unfair advantage affects only a specific creditor or segment of creditors, the court should subordinate the offending claimant only to the more limited class of claims rather than the claims of all creditors.”). Y. The Test for Equitable Subordination Building on the premise articulated in Pepper v. Litton, 308 U.S. 295, 310, 60 S.Ct. 238, 84 L.Ed. 281 (1939), that “simply the violation of rules of fair play and good conscience” by a claimant justifies equitable subordination of a claim, many courts, including the Tenth Circuit, have developed a three-part test to determine whether equitable subordination is appropriate: (1) The claimant has engaged in inequitable conduct; (2) The conduct has injured creditors or given unfair advantage to the claimant; and (3) Subordination of the claim is not inconsistent with the Bankruptcy Code. Sloan v. Zions First Nat’l Bank (In re Castletons, Inc.), 990 F.2d 551, 559 (10th Cir.1993). Traditionally, equitable subordination “has been limited to cases involving (1) fraud, illegality or breach of fiduciary duty, (2) undercapitalization, [or] (3) control or use of the debtor as an alter ego" }, { "docid": "21367959", "title": "", "text": "1526, 134 L.Ed.2d 748 (1996). That existing doctrine, as the Court observed, was judge-made and was generally triggered by a showing that the creditor had engaged in “some type of inequitable conduct” that “resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant.” Id. at 538, 116 S.Ct. at 1526. The Fourth Circuit has adopted the test set forth in an often-cited opinion by the Fifth Circuit, Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692 (5th Cir.1977). See EEE Comm’l Corp. v. Holmes (In re ASI Reactivation, Inc.), 934 F.2d 1315 (4th Cir.1991). Under that test, equitable subordination generally requires an inquiry into (1) whether the claimant engaged in fraudulent conduct, (2) whether the conduct resulted in injury to creditors, and (3) whether subordination would be consistent with the bankruptcy law. Mobile Steel, 563 F.2d at 699-700; ASI Reactivation, 934 F.2d at 1320-21. See also Pepper v. Litton, 308 U.S. 295, 307-10, 60 S.Ct. 238, 246-47, 84 L.Ed. 281(1939) (stating that a bankruptcy court, as a court of equity, may sift the circumstances surrounding a claim to prevent injustice and may subordinate claims of controlling stockholders to prevent injustice). As the Tenth Circuit recently explained, “Inequitable conduct” for subordination purposes encompasses three categories of misconduct: (1) fraud, illegality, and breach of fiduciary duties; (2) underca-pitalization; or (3) claimant’s use of the debtor as a mere instrumentality or alter ego. In re Hedged-Invs. Assocs., Inc., 380 F.3d 1292, 1301 (10th Cir.2004). It has been said that “equitable subordination is an extraordinary remedy which is applied sparingly.” Bank of N.Y. v. Epic Resorts-Palm Springs Marquis Villas, LLC (In re Epic Capital Corp.), 307 B.R. 767, 773 (D.Del.2004). For this reason, where the claimant is not an insider or a fiduciary, the party seeking equitable subordination must “demonstrate ... egregious conduct such as gross misconduct tantamount to fraud, misrepresentation, overreaching, or spoliation.” Hedged-Invs., 380 F.3d at 1301-02; accord, Epic Capital Corp., 307 B.R. at 772. The trustee’s and the debtor’s argument, stripped to its essentials, is that because the Moirs advanced funds as" }, { "docid": "19988322", "title": "", "text": "1524, 134 L.Ed.2d 748 (1996); In re Kreisler, 546 F.3d 863, 866 (7th Cir.2008). Under this test, for a court to subordinate a claim, it must conclude that: (1) the claimant engaged in some type of inequitable conduct; (2) the misconduct resulted in injury to the creditors or conferred an unfair advantage on the claimant; and (3) subordination is not inconsistent with the provision of the Bankruptcy Code. In re Mobile Steel Co., 563 F.2d at 699-700; see In re Kreisler, 546 F.3d at 866. Equitable subordination is an “extraordinary remedy” that “should be invoked only in extreme circumstances and only where a clear inequity has been wrought.” Aetna Bank v. Dvorak, 176 B.R. 160, 166 (N.D.Ill.1994). “Absence of statutory criteria commits the subject to the courts, to be worked out in the common law fashion.” Kham & Nate’s Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1356 (7th Cir.1990) (citations omitted). “Traditionally, equitable subordination has been limited to cases involving (1) fraud, illegality or breach of fiduciary duty, (2) undercapitalization, or (3) control or use of the debtor as an alter ego for the benefit of the claimant.” In re Granite Partners, L.P., 210 B.R. 508, 514 (Bankr.S.D.N.Y.1997) (citations omitted). “Where noninsider, non-fiduciary claims are involved, the level of pleading and proof is even higher.” Id. at 515. “Courts have described the degree of wrongful conduct warranting equitable subordination of an ordinary creditor’s claim as ‘gross and egregious’, ‘tantamount to fraud, misrepresentation, overreaching or spoliation’ or ‘involving moral turpitude.’ ” Id. Trustee maintains that BNYM acted inequitably by: (1) taking customer securities as collateral without investigating Sentinel’s authority to pledge them; (2) failing to establish a process designed to carry out segregation; (3) demanding additional collateral despite being over secured, and using proceeds of securities sales to pay down the loan; and (4) lying throughout the course of the litigation. According to Trustee, this conduct amounts to: (1) BNYM’s participation in the misappropriation of customer assets; (2) violations of section 6(d)(b) of the CEA, which imposes segregation obligations on FCMs and custodians; (3) violation of" }, { "docid": "15265010", "title": "", "text": "in “some type of inequitable conduct”; (2) the misconduct must have “resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant”; and (3) equitable subordination of the claim must “not be inconsistent with the provisions of the Bankruptcy Act.” Even after the enactment of section 510(c), the vast majority of courts have continued to apply the Mobile Steel test, as recognized by the Supreme Court. Inequitable conduct under the first prong of the Mobile Steel test is generally defined as either (1) fraud, illegality, or breach of fiduciary duties; (2) undercapi-talization; or (3) the claimant’s use of the debtor as a mere instrumentality or alter ego. The second requirement is met where the general creditors are less likely to collect their debts as a result of the alleged inequitable conduct. “ ‘If the misconduct results in harm to the entire creditor body, the [trustee] need not identify the injured creditors or quantify their injury, but need only show that the creditors were harmed in some general, concrete manner.’ ” The third requirement “has been read as a reminder to the bankruptcy court that although it is a court of equity, it is not free to adjust the legally valid claim of an innocent party who asserts the claim in good faith merely because the court perceives that the result is inequitable.” “The purpose of equitable subordination is to undo wrongdoing by an individual creditor in the interest of the other creditors.” Nevertheless, many courts view equitable subordination as a “drastic and unusual remedy.” Moreover, “the doctrine is remedial, not penal, and should be applied only to the extent necessary to offset specific harm that creditors have suffered on account of the inequitable conduct.” As the Bankruptcy Court below itself acknowledged, “the power to subordinate an allowed claim is not boundless and courts cannot use equitable principles to disregard unambiguous statutory language of the Bankruptcy Code.” C. Disallowance “Section 502(d) requires a court to disallow an entity’s claim against the bankruptcy estate if the estate is entitled to recover property from that entity, such" }, { "docid": "17702536", "title": "", "text": "test, a claim is equitably subordinated if there is a showing by a preponderance of the evidence that (i) the claim holder engaged in some type of inequitable conduct, (ii) which injured the creditors of the debtor or conferred an unfair advantage on the claimant, and (iii) equitable subordination of the claim is not inconsistent with the provisions of the Bankruptcy [Code]. Id. at 700. See also In re Lifschultz Fast Freight, 132 F.3d 339, 344 (7th Cir.1997). “Equitable subordination is an unusual remedy which should be applied only' in limited circumstances.” Fabricators, Inc. v. Technical Fabricators, Inc. (In re Fabricators, Inc.), 926 F.2d 1458, 1464 (5th Cir.1991). “A claim arising from the dealings between a debtor and an insider is to be rigorously scrutinized by the courts.” Id. at 1465 (citations omitted). Nonetheless, “the mere fact of an insider relationship is insufficient to warrant subordination.” Id. at 1467 (citing Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 712 F.2d 206, 210 (5th Cir.1983)). The initial burden of going forward with factual evidence to overcome the validity of the claimant’s proof of claim rests on the trustee or a fiduciary. Once the initial burden is met, it then shifts to the claimant “to demonstrate its good faith and the fairness of its conduct.” Id. at 212 (citing Mobile Steel, 563 F.2d at 701). Applying the “rigorous scrutiny” standard to review the LeRouxs’ conduct, we will now examine whether the LeRouxs engaged in misconduct which injured the Debtor’s creditors or conferred an unfair advantage on themselves. Three categories of misconduct have generally been recognized to constitute inequitable conduct: “(1) fraud, illegality, breach of fiduciary duties; (2) un-dercapitalization; and (3) claimant’s use of the debtor as a mere instrumentality or alter ego.” Fabricators, 926 F.2d at 1467; see also Lifschultz, 132 F.3d at 344 (quoting In re Missionary Baptist Foundation of America, 712 F.2d 206, 212 (5th Cir.1983)). Undercapitalization of the debtor alone, absent misconduct by the insider, is insufficient to justify equitable subordination of an insider’s debt claim. Id. at 343. The Debtor alleges that the LeRouxs’ claim" }, { "docid": "21367960", "title": "", "text": "a court of equity, may sift the circumstances surrounding a claim to prevent injustice and may subordinate claims of controlling stockholders to prevent injustice). As the Tenth Circuit recently explained, “Inequitable conduct” for subordination purposes encompasses three categories of misconduct: (1) fraud, illegality, and breach of fiduciary duties; (2) underca-pitalization; or (3) claimant’s use of the debtor as a mere instrumentality or alter ego. In re Hedged-Invs. Assocs., Inc., 380 F.3d 1292, 1301 (10th Cir.2004). It has been said that “equitable subordination is an extraordinary remedy which is applied sparingly.” Bank of N.Y. v. Epic Resorts-Palm Springs Marquis Villas, LLC (In re Epic Capital Corp.), 307 B.R. 767, 773 (D.Del.2004). For this reason, where the claimant is not an insider or a fiduciary, the party seeking equitable subordination must “demonstrate ... egregious conduct such as gross misconduct tantamount to fraud, misrepresentation, overreaching, or spoliation.” Hedged-Invs., 380 F.3d at 1301-02; accord, Epic Capital Corp., 307 B.R. at 772. The trustee’s and the debtor’s argument, stripped to its essentials, is that because the Moirs advanced funds as an investment rather than a loan, their claim should not have priority over, or even share ratably with, the claims of creditors who loaned money or extended credit to the debtor. It is, of course, true that the agreement — which was prepared by Mr. Moir — setting out the terms of the transaction consistently refers to the funds being provided as an “investment” rather than a loan. Yet, it also refers to Ms. Wilson throughout as the “borrower” and also refers at one point to the “debt secured by this agreement.” Additionally, there is no evidence that the Moirs engaged in fraud or some other conduct designed to secure an unfair advantage over other creditors. Nor were the Moirs insiders taking advantage of some special relationship to, or influence over, the debt- or. Rather it appears that they acted in good faith to provide Ms. Wilson the funds she needed in order to complete the purchase of the property. At the time the terms were agreed to, bankruptcy was not even on the horizon," }, { "docid": "12569005", "title": "", "text": "defendants who “stand in no different position than [defendants] already named” in the lawsuit, and the claims against the original defendants have been determined to be groundless, denial of leave to amend is not an abuse of discretion. Emory v. Texas State Board of Medical Examiners, 748 F.2d 1023, 1027 (5th Cir.1984). Similarly, the claim of equitable subordination asserted by the Freytags is based on a claim of illegal lending practices that is determined (pursuant to the cross-motions for summary judgment discussed supra) to be groundless. Equitable subordination actions in bankruptcy are governed by 11 U.S.C. § 510(c) and by common-law principles. In the Fifth Circuit, a bankruptcy court is permitted (but never required) to equitably subordinate a claim if three factors are present: (1) the claimant must have engaged in some type of inequitable conduct; (2) the misconduct must have resulted in injury to the creditors or conferred an unfair advantage on the claimant; and (3) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. Fabricators, Inc. v. Technical Fabricators, Inc. (Matter of Fabricators, Inc.), 926 F.2d 1458, 1464-65 (5th Cir.1991), citing Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 700 (5th Cir.1977). See also Holt v. Federal Deposit Insurance Corporation (Matter of CTS Truss, Inc.), 868 F.2d 146, 148-49 (5th Cir.1989) (pointing out that “the unusual remedy of equitable subordination” has actually been confined by courts to cases in which a fiduciary of the debtor misuses his position to the disadvantage of other creditors, those in which a third party controls the debtor to the disadvantage of others, and those in which a third party defrauds other creditors). To invoke equitable subordination, all three prongs of the Mobile Steel test cited above must be met. Herby’s Foods, Inc. v. Summit Coffee Company, Inc. (In re Herby’s Foods, Inc.), 134 B.R. 207, 211 (Bankr.N.D.Tex.1991) (Felsenthal, B.J.). Under the facts pled in the plaintiffs’ proposed amended complaint, the plaintiffs have not stated a claim for equitable subordination because they cannot meet the first prong of the Mobile Steel test. The" }, { "docid": "21421616", "title": "", "text": "to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. 11 U.S.C. § 510(c). Under the doctrine of equitable subordination, a court looks to the behavior of the parties involved. If fairness so requires, “[t]he funds in question' are still considered outstanding corporate debt,” but a court “postpon[es] the subordinated creditor’s right to repayment until others’ claims have been satisfied.” In re Hedged-Investments, 380 F.3d at 1297 (citing In re Mid-Town Produce, 599 F.2d at 393-94). We note that equitable subordination is an extraordinary remedy to be employed by courts sparingly. “Wrongful or unpredictable subordination spawns legal uncertainty of a particular type: the risk that a court may refuse to' honor an otherwise binding agreement on amorphous grounds of equity.” In re Lifschultz Fast Freight, 132 F.3d 339, 347 (7th Cir.1997). The Tenth Circuit requires three conditions for a court to exercise its equitable subordination power: “(1) ‘inequitable conduct’ on the part of the claimant sought to be subordinated; (2) injury to the other creditors of the bankrupt or unfair advantage for the claimant resulting from the claimant’s conduct; and (3) consistency with the provisions of the Bankruptcy Code.” In re Hedged-Investments, 380 F.3d at 1300. We place “special emphasis” on whether inequitable conduct has occurred, id. at 1300, and recognize three categories of such conduct: “(1) fraud, illegality, and breach of fiduciary duties; (2) undercapitalization; or (3) claimant’s use of the debtor as a mere instrumentality or alter ego,” id. at 1301 (quoting In re Fabricators, Inc., 926 F.2d 1458, 1467 (5th Cir.1991)). A majority of courts have described the degree of inequitable conduct warranting subordination as “gross and egregious, tantamount to fraud, misrepresentation, overreaching or spoliation, or involving moral turpitude.” In re Eufaula Indus. Auth., 266 B.R. 483, 489 (B.A.P. 10th Cir.2001). If a claimant is an “insider” or a “fiduciary” of the debtor, our analysis is less stringent. “[T]he party seeking subordination need only show some unfair conduct, and a degree of culpability, on the part of the insider.” In re Hedged-Investments, 380" } ]

[ { "docid": "22690832", "title": "", "text": "the law; it is a necessary incident to the settlement of the estate.” Thomas v. Western Car Co., 149 U. S. 95, 116-117. Cf. American Iron Co. v. Seaboard Air Line, 233 U. S. 261. Courts have felt that it would be inequitable for anyone to gain an advantage or suffer a loss because of such delay. Sexton v. Dreyfus, 219 U. S. 339, 346. Accrual of simple interest on unsecured claims in bankruptcy was prohibited in order that the administrative inconvenience of continuous recomputation of interest causing recomputation of claims could be avoided. Moreover, different creditors whose claims bore diverse interest rates or were paid by the bankruptcy court on different dates would suffer neither gain nor loss caused solely by delay. Simple interest on secured claims accruing after the petition was filed was denied unless the security was worth more than the sum of principal and interest due. Sexton v. Dreyfus, supra. To allow a secured creditor interest where his security was worth less than the value of his debt was thought to be inequitable to unsecured creditors. Thus we recently said: “Since the distribution provided for these bonds on the basis of their mortgage securities is less than the principal amount of their claim, the limitation of their right to share the unmortgaged assets ratably with the unsecured creditors on the basis of principal and interest prior to bankruptcy only is justified under the rule of Ticonic National Bank v. Sprague, 303 U. S. 406.” Group of Institutional Investors v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 318 U. S. 523, 573. But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor. Coder v. Arts, 213 U. S. 223, 245; Sexton v. Dreyfus, supra. See also Johnson v. Norris, 190 F. 459. It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities" } ]

[ { "docid": "1151580", "title": "", "text": "B.R. 523, 525 (Conn.1985). However, other courts have reached the opposite conclusion favoring the analysis found in In re Stack Steel & Supply Co., 28 B.R. 151, 156 (W.Wash.1983). Accord, Matter of Lumara Foods of America, Inc., supra, 50 B.R. at 817; Matter of Hirsch-Franklin Enterprises, Inc., 63 B.R. 864, 870 (M.Ga.1986). A. Bankruptcy Act In our review we note that the Bankruptcy Act (“Act”), like the Code, had no provision specifically permitting post-bankruptcy interest on claims in general or tax claims in particular. See New York v. Saper, 336 U.S. 328, 331, 69 S.Ct. 554, 556, 93 L.Ed. 710 (1949). Under the Act the courts adhered to the equitable principle that interest did not generally accrue after a bankruptcy petition was filed. Sexton v. Dreyfus, 219 U.S. 339, 344, 31 S.Ct. 256, 257, 55 L.Ed. 244 (1911) (Holmes, J.). The denial of post-petition interest on claims was based on the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience. Bruning v. United States, 376 U.S. 358, 362, 84 S.Ct. 906, 908, 11 L.Ed.2d 772 (1964). Over the course of the development of the treatment of claims for post-petition interest several exceptions allowing such claims were created by case law based on equitable considerations. One long established exception directed that when an estate proved to be solvent, with sufficient assets to pay all claims in full, then creditors were entitled to receive post-petition interest before any surplus would be returned to the bankrupt. See American Iron & Steel Mfg. Co., v. Seaboard Air Line R. Co., 233 U.S. 261, 267, 34 S.Ct. 502, 504, 58 L.Ed. 949 (1914); Debentureholders v. Continental Inv. Corp., 679 F.2d 264, 269 (1st Cir.1982); In re F.P. Newport Corp., 123 F.Supp. 95, 99 (S.Cal.1954). Post-petition interest was allowed on secured claims if they were oversecured or where the collateral produced income which could be used to satisfy interest charges. See Matter of Walsh Const., Inc., 669 F.2d 1325, 1330 (9th Cir.1982). Also, under Nicholas v. United States, 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966), post-petition interest was allowed" }, { "docid": "13116601", "title": "", "text": "CLARK, Circuit Judge. In City of New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710, the Supreme Court held that taxes did not continue to bear interest after bankruptcy of the taxpayer; and in United States v. Edens, 342 U.S. 912, 72 S.Ct. 357, 96 L.Ed. 682, it held, the same principle applicable in reorganization proceedings in affirming Per Curiam, 4 Cir., 189 F.2d 876. The present case concerns the reorganization of Huyler’s, which went into reorganization upon the filing of a petition on April 25, 1952. The claim of the State of New York for unemployment-taxes, including interest at the rate of % of' 1% per month (9% per year) up to the-date of the petition, was allowed in the total sum of $41,184.77. On October 1, 1952, the district court approved the trustee’s plan of reorganization which provided for the is.suance to tax claimants of subordinated' debenture bonds bearing interest at the rate of 6%. See D.C.S.D.N.Y., 107 F.Supp. 318, 323, 324. The State of New York does, not object to the failure to pay interest during reorganization proceedings, but does assert that under the “absolute priority rule” of Northern Pac. R. Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931, the bonds when issued must bear interest at the statutory rate totaling 9% per annum.. See N.Y. Labor Law, McK.Consol.Laws, c. 31, § 570, subd. 4; see also § 574 providing in the event of bankruptcy or reorganization for such priority for the amount of-taxes due, “together with, any interest and penalties thereon,” as “is provided in such-act,” i. e., “the federal bankruptcy act.” In view of the now settled rule-that even governmental claims bear no- interest during bankruptcy or reorganization this contention seems to us of doubtful logic. Under the Boyd case existing priorities must be recognized up to the bar date of initiation of the proceedings; hut thereafter they stand as then established and are fully discharged upon consummation of the final plan of reorganization. Bankruptcy Act § 228, 11 U.S.C. § 628. In view of the “practical" }, { "docid": "1151579", "title": "", "text": "reduction in credit relating to a tax of a kind specified in subparagraph (B) of this paragraph [.] 11 U.S.C. § 503(b)(1). This statute awards administrative priority status to post-petition taxes and tax penalties. Matter of Lumara Foods of America, Inc., 50 B.R. 809, 816 (N.Ohio 1985); In re St. Louis Freight Lines, Inc., 45 B.R. 546, 549 n. 5 (E.Mich.1984). It is silent, however, on the issue of the payment of interest on the post-petition taxes. The Code does not expressly provide for interest on post-petition taxes to be treated as an administrative expense. Consequently, the courts have split over whether to grant administrative priority status to interest on unpaid post-petition taxes. 3 Collier on Bankruptcy, ¶ 503.04 at 503-39 (15th ed. 1987). The Fourth Circuit Court of Appeals has held in a similar case that interest on post-petition taxes is entitled to administrative priority. United States v. Friendship College, Inc., 737 F.2d 430, 433 (4th Cir.1984). Accord, Matter of Pharmadyne Laboratories, Inc., 53 B.R. 517, 523 (N.J.1985); In re General Polymerics Corp., 54 B.R. 523, 525 (Conn.1985). However, other courts have reached the opposite conclusion favoring the analysis found in In re Stack Steel & Supply Co., 28 B.R. 151, 156 (W.Wash.1983). Accord, Matter of Lumara Foods of America, Inc., supra, 50 B.R. at 817; Matter of Hirsch-Franklin Enterprises, Inc., 63 B.R. 864, 870 (M.Ga.1986). A. Bankruptcy Act In our review we note that the Bankruptcy Act (“Act”), like the Code, had no provision specifically permitting post-bankruptcy interest on claims in general or tax claims in particular. See New York v. Saper, 336 U.S. 328, 331, 69 S.Ct. 554, 556, 93 L.Ed. 710 (1949). Under the Act the courts adhered to the equitable principle that interest did not generally accrue after a bankruptcy petition was filed. Sexton v. Dreyfus, 219 U.S. 339, 344, 31 S.Ct. 256, 257, 55 L.Ed. 244 (1911) (Holmes, J.). The denial of post-petition interest on claims was based on the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience. Bruning v. United States, 376 U.S. 358, 362, 84 S.Ct. 906," }, { "docid": "13520860", "title": "", "text": "order affirming the bankruptcy court’s decision, essentially adopting the reasoning of the bankruptcy court. The debtors appeal. We have jurisdiction over the debtors’ appeal pursuant to 28 U.S.C. § 158(d) (1988). Because the only issues presented in this appeal involve the proper interpretation of the Bankruptcy Code, our review is plenary. See In re Roth American, Inc., 975 F.2d 949, 952 (3d Cir.1992); see also In re Abbotts Dairies, 788 F.2d 143, 147 (3d Cir.1986). II. DISCUSSION A. Under the Bankruptcy Code, creditors are not entitled to include unmatured (or “post-petition”) interest as part of their claims in the bankruptcy proceedings. See 11 U.S.C. § 502(b)(2) (1988); see also Sexton v. Dreyfus, 219 U.S. 389, 344, 31 S.Ct. 256, 257, 55 L.Ed. 244 (1911) (noting that this rule is derived from a fundamental principle of the English bankruptcy system). This longstanding rule is designed to assure that no creditor gains an advantage or suffers a loss due to the delays inherent in liquidation and distribution of the estate. American Iron & Steel Mfg. Co. v. Seaboard Air Line Ry., 233 U.S. 261, 266, 34 S.Ct. 502, 504, 58 L.Ed. 949 (1914); see also In re Hanna, 872 F.2d 829, 830-31 (8th Cir.1989). The prohibition against claims for post-petition interest generally applies even in instances where the claims are based upon underlying debts that are not dischargeable. See, e.g., City of New York v. Soper, 336 U.S. 328, 337-38, 69 S.Ct. 554, 559-60, 93 L.Ed. 710 (1949); see also In re JAS Enterprises, Inc., 143 B.R. 718, 719 (Bankr.D.Neb.1992). In Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), the precedent of most significance for the issue before us, the Supreme Court distinguished between denial of post-petition interest against the bankruptcy estate on a nondischargeable debt and the accrual of interest on a nondisehargeable debt during the pendency of the bankruptcy to be collected from the debtor after the bankruptcy proceeding is completed. Id. at 362-63, 84 S.Ct. at 908-09. In Bruning, a taxpayer who had been discharged from bankruptcy challenged the IRS’s contention that it" }, { "docid": "8508256", "title": "", "text": "the hands of the trustee in bankruptcy * * not * * * at least without leave of the court. * * *” With so much authority for the view that prior permission is required for the release of funds in the custody of the bankruptcy court, I can find no reason for a district court judge to sanction the instant levy. I cannot agree that the courts would be burdened by requests for permission to levy especially when, under the “risk” procedure sanctioned by the Referee, as much and possibly more time would be consumed in hearings and appeals. III. POST-BANKRUPTCY INTEREST United States v. Sullivan, 333 F.2d 100 (3rd Cir. 1964) relied on by the Referee holds that a levy transfers ownership “when validly invoked.” A levy made on funds in the custody of the Bankruptcy Court without that Court’s prior permission is not a levy “validly invoked.” No proper levy had been made on the Electricon dividend in the custody of the Quakertown Bankruptcy Court as of the date Electricon went into receivership. Since the levy was not effective and valid at the “date of bankruptcy” of Electricon-Subur-ban, Inc., it became no more than another debt of the bankrupt Electricon estate once the bankruptcy petition was filed. It follows then that the District Director had only the usual rights of the Government when it proves its claims in bankruptcy. This does not include post-bankruptcy interest. City of New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710 (1949); Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244 (1910). Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964) does not support the District Director’s position. There the Supreme Court allowed post-petition interest on a tax debt “which survives bankruptcy to the extent that it is not paid out of the estate.” 376 U.S. at 362, 84 S.Ct. at 908. That holding can have no effect where bankruptcy has frozen an invalid levy rendering it a mere debt and thus bringing it within the “traditional rule, as reiterated" }, { "docid": "13686122", "title": "", "text": "five years when the trustee improperly withheld it. They base their argument on 11 U.S.C. § 726(b), which requires pro rata distribution to claimants of the same class. If they do not receive interest, the argument runs, then they will have actually been paid less than other creditors of the same class (who have had the use of their 40% payment for the past five years), and will not have obtained a true pro rata share. Thus, they ask the court to invoke its equitable power and enforce their rights under § 726(b) by granting them interest. The age-old rule in bankruptcy, adopted from the English system, is that interest on claims stops accruing when the bankruptcy petition is filed. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 246, 109 S.Ct. 1026, 1033, 103 L.Ed.2d 290 (1989); Nicholas v. United States, 384 U.S. 678, 682, 86 S.Ct. 1674, 1679, 16 L.Ed.2d 853 (1966); Bruning v. United States, 376 U.S. 358, 362, 84 S.Ct. 906, 908, 11 L.Ed.2d 772; (1964); New York v. Saper, 336 U.S. 328, 330 n. 7, 69 S.Ct. 554, 555 n. 7, 93 L.Ed. 710 (1949); Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 163, 67 S.Ct. 237, 240, 91 L.Ed. 162 (1946); Sexton v. Dreyfus, 219 U.S. 339, 344, 31 S.Ct. 256, 257, 55 L.Ed. 244 (1911); 2 William Blackstone, Commentaries *488. In other words, creditors cannot recover post-petition interest on them claims. This rule has been written into the Bankruptcy Code at 11 U.S.C. § 502(b)(2). One justification for the rule is that it promotes certainty and eases the administration of the estate by fixing a date when the affairs of the bankrupt are considered to be wound up. Sexton, 219 U.S. at 344-345, 31 S.Ct. at 257-258. By setting a date when interest stops, the rule saves the trustee from having to continuously recalculate the amount due each creditor. Vanston Committee, 329 U.S. at 164, 67 S.Ct. at 240. It also saves the estate from having to pay extra for the delay in payment when that delay is necessary if the" }, { "docid": "7190259", "title": "", "text": "order that the administrative inconvenience of continuous recomputation of interest causing recomputation of claims could be avoided. Moreover, different creditors whose claims bore diverse interest rates or were paid by the bankruptcy court on different dates would suffer neither gain nor loss caused solely by delay. Vanston Bondholders Protective Committee v. Green, 329 U.S. at 163-64, 67 S.Ct. at 240 (footnote omitted). Historically governmental entities’ claims for past due taxes received special treatment, accruing postpetition interest until the date of payment. See City of New York v. Saper, 336 U.S. 328, 333, 69 S.Ct. 554, 557, 93 L.Ed. 710. In Saper, however, the Supreme Court held that the general prohibition against the payment of postpetition interest embraced tax liens in bankruptcy cases. Id. at 338, 69 S.Ct. at 559. Saper’s ban on postpetition interest for tax claims has been extended to Chapter X reorganizations, United States v. Edens, 189 F.2d 876, 877 (4th Cir.1951), aff’d per curiam, 342 U.S. 912, 72 S.Ct. 357, 96 L.Ed. 682 (1952); Chapter XI arrangements, Massachusetts v. Thompson, 190 F.2d 10, 10-11 (1st Cir.1951), cert. denied, 342 U.S. 918, 72 S.Ct. 364, 96 L.Ed. 686 (1952); United States v. General Engineering and Manufacturing Co., 188 F.2d 80, 81-83 (8th Cir. 1951), aff’d per curiam, 342 U.S. 912, 72 S.Ct. 358, 96 L.Ed. 682 (1952); direct actions against a debtor after the confirmation of an arrangement, National Foundry Co. v. Director of Internal Revenue, 229 F.2d 149, 150-51 (2d Cir.1956); and Section 77 railroad reorganizations, In re Penn Central Transportation Co., 358 F.Supp. 154, 170 (E.D.Pa.1973); In re New York, New Haven and Hartford Railroad Co., 304 F.Supp. 1121, 1129-32 (D.Conn.1969). Despite the general prohibition on the payment of postpetition interest, three exceptions have been developed by the federal courts. Interest may accrue: (1) where the bankrupt ultimately proves to be solvent; (2) where securities, held by the creditor produce income after the filing of the petition; and (3) where the amount of the secured creditor’s security is sufficient to satisfy both the principal and interest due on the secured claim. In re Walsh Construction, Inc.," }, { "docid": "12981740", "title": "", "text": "that his company got into a financial bind and had to have the payments on time, but in order to obtain the payments which were due and owing from Speedway he had to agree to pay Smith and Turner in return for delivery of Speedway’s checks. Other evidence of a circumstantial nature also tends to support the lower court’s findings. The total amount of money paid to Smith and Turner for rent in relation to the value of the equipment itself, which witnesses testified was approximately $12,000, would seem excessive. The manner in which Turner acquired his interest in the equipment created suspicious circumstances. Smith owned the equipment before Speedway was organized. When Speedway was formed and construction had been started, he sold Turner a one-half interest for Turner’s personal note of $7,500 and $5,000 in cash. After construction was completed Turner resold his interest to Smith for Smith’s cancellation of Turner’s $7,500 note. Upon our review of the evidence on this point, being fully cognizant of the right of the court below to determine credibility issues, and in view of Smith’s fiduciary relationship to Speedway, we cannot say that the court’s finding that these payments were kickbacks was clearly erroneous. INTEREST Counsel for Smith requested the court below to adopt a proposed conclusion of law which provided that Smith had a right to recover interest at six per cent on all his claims approved by the court from the date each claim accrued until paid. The court refused and Smith contends this was error. The law is well settled that a creditor will not be allowed interest from the date of filing of a petition in bankruptcy until the claim is paid. Bruning v. United States, 376 U.S. 358, 361, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964); City of New York v. Saper, 336 U.S. 328, 331, 69 S.Ct. 554, 93 L.Ed. 710 (1949); Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 163, 67 S.Ct. 237, 91 L.Ed. 162 (1946); Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244 (1911); United States V. Harrington, 209" }, { "docid": "12981741", "title": "", "text": "credibility issues, and in view of Smith’s fiduciary relationship to Speedway, we cannot say that the court’s finding that these payments were kickbacks was clearly erroneous. INTEREST Counsel for Smith requested the court below to adopt a proposed conclusion of law which provided that Smith had a right to recover interest at six per cent on all his claims approved by the court from the date each claim accrued until paid. The court refused and Smith contends this was error. The law is well settled that a creditor will not be allowed interest from the date of filing of a petition in bankruptcy until the claim is paid. Bruning v. United States, 376 U.S. 358, 361, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964); City of New York v. Saper, 336 U.S. 328, 331, 69 S.Ct. 554, 93 L.Ed. 710 (1949); Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 163, 67 S.Ct. 237, 91 L.Ed. 162 (1946); Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244 (1911); United States V. Harrington, 209 F.2d 719 (4 Cir. 1959); 3 Collier on Bankruptcy, § 63.16 (14 Ed. 1964). It was once thought that the rule in corporate reorganization proceedings was different, see 6 Collier on Bankruptcy, § 9.08 at page 2817, but recent authority supports the position that the rule disallowing post-petition interest in ordinary bankruptcy applies to corporate reorganizations. United States v. Edens, 189 F.2d 876 (4 Cir. 1951), affirmed per curiam 342 U.S. 912, 72 S. Ct. 357, 96 L.Ed. 682 (1952); In Re Magnus Harmonica Corp., 262 F.2d 515 (3 Cir. 1959); State of New York v. Feinberg, 204 F.2d 502 (2 Cir. 1953); 6 Collier on Bankruptcy, § 9.08 (1963 Supp.). Consequently, Smith did not have a right to recover interest on the approved claims after the date the petition was filed. Although the general rule would normally permit Smith to recover interest on the approved claims up to the time the petition was filed, we think the court could, in the exercise of its sound discretion, deny it. In Chapter X proceedings the court" }, { "docid": "21370880", "title": "", "text": "999 (3 Cir., 1941). Therefore, our consideration of post-bankruptcy interest in this tax claim can be no different than that of interest accruing generally as cost of administration on other like claims. Considering interest in connection with bankruptcy, it appears that there is a “ * * * long-standing rule against post-bankruptcy interest * * * implicit in our current Bankruptcy Act.” New York v. Saper, 336 U.S. 1. c. 332, 69 S.Ct. 1. c. 556. In Vanston etc. Committee v. Green, 329 U.S. 156, 1. c. 163, 67 S.Ct. 237, 240, 91 L.Ed. 162 (1946), the Court stated: “The general rule in bankruptcy * * * has been that interest on the debtors’ obligations ceases to accrue at the beginning of proceedings.” As said in Bruning v. United States, 376 U.S. 358, at 361-362, 84 S.Ct. 906, at 11 L.Ed.2d 772: “As to claims against the trustee in bankruptcy, the general rule for liquidation of the bankruptcy estate has long been that a creditor will be allowed interest only to the date of the petition in bankruptcy. * * * ” and that Saper, supra, makes the general rule (applicable) “to claims against the trustee for taxes as well as for other debts.” As the Court, in ,Vanston etc. Committee v. Green, pointed out, this is a matter of equity * * * the delay in distribution being caused by law, and the estate should not be penalized for the delay by additional interest. In this connection, see Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244 (1911); United States v. Bass, 271 F.2d 129 (9 Cir., 1959); Massachusetts v. Thompson, 190 F.2d 10 (1 Cir., 1951); 3 Collier on Bankruptcy, § 63.16, p. 1858. There is also a matter of administrative convenience, as the very purpose of a “cutoff” or “bar” date would be thwarted if obligations are allowed to accrue past that date, continuing the vicious circle which bankruptcy was designed to terminate. This is not to say that such post-bankruptcy interest may never be allowed, for it is settled that the creditors’ rights" }, { "docid": "12981742", "title": "", "text": "F.2d 719 (4 Cir. 1959); 3 Collier on Bankruptcy, § 63.16 (14 Ed. 1964). It was once thought that the rule in corporate reorganization proceedings was different, see 6 Collier on Bankruptcy, § 9.08 at page 2817, but recent authority supports the position that the rule disallowing post-petition interest in ordinary bankruptcy applies to corporate reorganizations. United States v. Edens, 189 F.2d 876 (4 Cir. 1951), affirmed per curiam 342 U.S. 912, 72 S. Ct. 357, 96 L.Ed. 682 (1952); In Re Magnus Harmonica Corp., 262 F.2d 515 (3 Cir. 1959); State of New York v. Feinberg, 204 F.2d 502 (2 Cir. 1953); 6 Collier on Bankruptcy, § 9.08 (1963 Supp.). Consequently, Smith did not have a right to recover interest on the approved claims after the date the petition was filed. Although the general rule would normally permit Smith to recover interest on the approved claims up to the time the petition was filed, we think the court could, in the exercise of its sound discretion, deny it. In Chapter X proceedings the court sits as a court of equity and equitable considerations are applicable. 9 Am.Jur.2d, Bankruptcy, § 1495 (1963). As stated in Vanston Bondholders Protective Committee v. Green, supra, 329 U.S. at page 165, 67 S.Ct. at page 241: “It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor. * * * ” Applying equity principles, we conclude that the nature of the transactions and the surrounding circumstances which gave rise to Smith’s claims and the Trustee’s counterclaims would be sufficient to justify the disallowance of a claim for interest. As the Court stated in Pepper v. Litton (1939) 308 U.S. 295, at pages 307-308, 60 S.Ct. 238, at pages 245-246, 84 L.Ed. 281: “As we have said, the bankruptcy court in passing on allowance of claims sits as a court of equity. Hence these rules governing the fiduciary responsibilities of directors and stockholders come into play on allowance of their claims in" }, { "docid": "20947049", "title": "", "text": "the dates of their respective assessments to the date of the entry of a judgment in this ease. It may be fairly said that since the decedent’s estate has always been and is insolvent, the proceeding for its settlement is “akin to a proceeding in bankruptcy”. United States v. Saxe, 1958, 1 Cir., 261 F.2d 316. The general rule in bankruptcy and in equity receiverships and insolvency proceedings is that interest ceases to accrue on the debtor’s obligations at the beginning of the proceedings. City of New York v. Saper, 1949, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710; Vanston, etc., Committee v. Green, 1946, 329 U.S. 156, 67 S.Ct. 237, 91 L. Ed. 162; Sexton v. Dreyfus, 1911, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244; Thomas v. Western Car Co., 1893, 149 U.S. 95, 13 S.Ct. 824, 37 L.Ed. 663; United States v. Kalishman, 1965, 8 Cir., 346 F.2d 514; United States v. Bass, 1959, 9 Cir., 271 F.2d 129. In Thomas v. Western Car Co., supra, the Supreme Court said at pages 116 and 117, of 149 U.S., at page 833 Of 13 S.Ct.: “As a general rule, after property of an insolvent passes into the hands of a receiver or of an assignee in insolvency, interest is not allowed on the claims against the funds. The delay in distribution is the act of the law; it is a necessary incident to the settlement of its estate.” While there are two well recognized exceptions to this general rule, neither has any application to the instant controversy. I see no valid reason why this general rule, based upon equitable considerations, should not be applied here. The case of Bruning v. United States, 1964, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772, upon which plaintiff relies to support its contention that it is entitled to interest to the date of the entry of judgment herein is in my opinion clearly distinguishable on its facts. That case concerned the debtor’s personal liability for post-petition interest on a debt for taxes which survived bankruptcy to the extent that" }, { "docid": "15510578", "title": "", "text": "PER CURIAM: We agree with the United States District Court for the Southern District of New York, John M. Cannella, Judge, reversing the decision of Bankruptcy Judge Edward J. Ryan, that under the subordination agreement here in question, the senior creditors are not entitled to be paid interest accruing after the date of bankruptcy through the date of payment of principal. Interest stops running against the bankrupt on the date of bankruptcy, § 63(a)(1) of the Bankruptcy Act, 11 U.S.C. § 103(a)(1), because any delay thereafter is by law for the preservation of the estate. Van-ston Bondholders Protective Committee v. Green, 329 U.S. 156, 163, 67 S.Ct. 237, 91 L.Ed. 162 (1946). See 3A Collier, Bankruptcy If 63.16. See also City of New York v. Saper, 336 U.S. 328, 330-32, 69 S.Ct. 554, 93 L.Ed. 710 (1949); Sexton v. Dreyfus, 219 U.S. 339, 344-45, 31 S.Ct. 256, 55 L.Ed. 244 (1911). Post-petition interest, Judge Cannella rightly held, is, for similar reasons, not recoverable by senior creditors out of dividends due from the estate to junior creditors, at least absent a structure of priorities among creditors by express provision in the subordination contract. In re Kingsboro Mortgage Corporation, 379 F.Supp. 227 (S.D.N.Y.1974). Here the contract does not explicitly refer to post-bankruptcy interest. Judge Cannel-la’s decision requiring unambiguous language in the subordination agreement conforms to the Third Circuit’s in In re Time Sales Finance Corp., 491 F.2d 841 (3d Cir. 1974), and was followed by District Judge Winner in In re King Resources Co., 385 F.Supp. 1269 (D.Colo. 1974). Nor is our In re Credit Industrial Corp., 366 F.2d 402, 408 (2d Cir. 1966), inconsistent. That case did not involve post-petition interest, even while recognizing that subordination agreements are not unenforceable as such in bankruptcy. We agree, then, that the language in Section 12(b) of the Subordination Agreement, “In the event of any insolvency, bankruptcy, liquidation, reorganization or other similar proceedings . then all principal and interest on all Senior Debt shall first be paid in full . before any payment on account of principal or interest is made upon the Notes" }, { "docid": "8508257", "title": "", "text": "receivership. Since the levy was not effective and valid at the “date of bankruptcy” of Electricon-Subur-ban, Inc., it became no more than another debt of the bankrupt Electricon estate once the bankruptcy petition was filed. It follows then that the District Director had only the usual rights of the Government when it proves its claims in bankruptcy. This does not include post-bankruptcy interest. City of New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710 (1949); Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244 (1910). Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964) does not support the District Director’s position. There the Supreme Court allowed post-petition interest on a tax debt “which survives bankruptcy to the extent that it is not paid out of the estate.” 376 U.S. at 362, 84 S.Ct. at 908. That holding can have no effect where bankruptcy has frozen an invalid levy rendering it a mere debt and thus bringing it within the “traditional rule, as reiterated in Bruning “which denies post-conviction interest as a claim against the bankruptcy estate.” The inapplicability of Bruning is brought home in its own language: The basic reasons for the rule denying post-petition interest as a claim against the bankruptcy estate are the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience. These reasons are inapplicable to an action brought against the debtor personally. In the instant case, collection of post-petition interest cannot inconvenience administration of the bankruptcy estate, cannot delay payment from the estate unduly, and cannot diminish the estate in favor of high interest creditors at the expense of other creditors. The difficulties noted in Bruning though absent where the debtor remains personally liable for an undischarged debt, could accrue here where the debtor goes into receivership after there is outstanding a levy invalid for absence of the consent of the Bankruptcy Court in another matter. Thus the dividend was not “assets of the taxpayer seized prior to the filing date of the taxpayer’s petition in bankruptcy,” as the District" }, { "docid": "10671022", "title": "", "text": "also recognize that if the Senior Debt is allowed to recover directly from, KRC its claimed post-petition interest, it will do so to the detriment of trade creditors. Such is not the desire of the Continental as the holder of Senior Debt. “It is our assertion that the Senior Debt is entitled to have honored the contractual terms of the Indenture. The total debt allocated against KRC will not be increased and the estate of KRC will not foe diminished by the post-petition interest due the Senior Debt. Instead, the post-petition interest due on Senior Debt becomes a charge against and is payable out of the fund allocated by KRC to the payment of the subordinated debenture holders in accordance with the terms of their contract.” The Banks have no choice other than to concede that they cannot collect post petition interest from the debtor. Sexton v. Dreyfus (1910) 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244; City of New York v. Saper (1949) 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710; Vanston Bondholders Protective Committee v. Green (1947) 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162; Nicholas v. United States (1966) 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853; United States v. Edens (1951) 4 Cir., 189 F.2d 876, aff’d. 342 U.S. 912, 72 S.Ct. 357, 96 L.Ed. 682; United States v. General Engineering and Manufacturing Co. (1951) 8 Cir., 188 F.2d 80, aff’d. 342 U.S. 912, 72 S.Ct. 358, 96 L.Ed. 682; 6A Collier on Bankruptcy, § 9.08. The only exceptions to the rule denying allowance of post petition interest against the debtor are set forth in Re Inland Gas Corporation (1957) 6 Cir., 241 F.2d 374, 379: “There are, however, well recognized exceptions to the general rule. (1) If the alleged bankrupt proves solvent, post-bankruptcy interest is paid before any surplus reverts to the Debtor. [King Resources is insolvent.] (2) If securities held by a creditor as collateral produce interest or dividends during bankruptcy such amounts are applied to post-bankruptcy interest. [There are no such securities here.] (3) If the value of the" }, { "docid": "23114679", "title": "", "text": "insolvency, interest is not allowed on the claims against the funds. The delay in distribution is the act of the law; it is a necessary incident to the settlement of the estate. * * * ” In bankruptcy cases, the courts have been unanimous in holding that, generally, interest upon claims does not accrue after the filing of the petition. This is true as to both unsecured and secured claims. Sexton v. Dreyfus, 1911, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244; Board of County Com’rs of Shawnee County, Kan. v. Hurley, 8 Cir., 1909, 169 F.2d 92; Brown v. Leo, 2 Cir., 1929, 34 F.2d 127; Littleton v. Kincaid, 4 Cir., 1950, 179 F.2d 848, 27 A.L.R.2d 572; 3 Collier on Bankruptcy (14th Ed.) Sec. 63.16. To this rule there have been two well-established exceptions: (1) where the bankrupt ultimately proves to be solvent, and (2) where securities, held by the creditor, themselves produce income after the filing of the petition. The Government contends for the recognition of a third exception to the rule stopping interest at the date of bankruptcy. It maintains that post-bankruptcy interest is allowable to a secured creditor where the amount of his security is sufficient to satisfy both principal and interest on the secured claim. It is the Government’s position that by virtue of having filed notices of tax liens prior to the petition, it is a secured creditor, and since the lien attaches to all of the property of the bankrupt, the entire estate is security for the tax claim. And, the argument continues, since the assets of the bank rupt are sufficient to pay the principal of the Government’s tax claim plus interest until the date of payment, even though this will reduce the amount going to the other creditors, the Government is entitled to interest upon its tax claim until the date of payment. Before 1949, the question of post-bankruptcy interest on tax claims was unsettled. In that year, however, the Supreme Court, in City of New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710, held" }, { "docid": "23312804", "title": "", "text": "HAMLIN, Circuit Judge. On November 14, 1955, a petition in bankruptcy was filed against Leland Cameron, doing business as Allied Aircraft Company. Prior thereto, on August 31, 1955, the District Director of Internal Revenue had assessed unpaid withholding and F.I.C.A. taxes against the bankrupt, and notice of the assessment, with demand for payment, was made on September 8, 1955. By July 9, 1958, the trustee had paid the entire principal amount owing on the tax lien, together with interest accruing to the date of bankruptcy. In addition to these amounts, the United States claimed interest from the date of bankruptcy to the date of payment of the principal amount of the claim. The referee allowed the interest over the objection of the trustee, who petitioned the District Court for review. The District Court reversed the referee’s order to the extent the referee had allowed interest after the date of bankruptcy on the tax lien claim. The Government appeals. The only question on this appeal is whether the United States is entitled to post-bankruptcy interest on a tax claim supported by a lien prior to the filing of the petition in bankruptcy. The general rule holds that interest does not accrue after the petition is filed. This rule is a “fundamental principle” derived from the bankruptcy theory that “everything stops at a certain date.” Sexton v. Dreyfus, 1911, 219 U.S. 339, 344, 31 S.Ct. 256, 257, 55 L.Ed. 244; City of New York v. Saper, 1949, 336 U.S. 328, 330, 69 S.Ct. 554, 93 L.Ed. 710. “The delay in distribution is the act of the law; it is a necessary incident to the settlement of the estate.” Thomas v. Western Car Co., 1893, 149 U.S. 95, 116, 13 S.Ct. 824, 833, 37 L.Ed. 663; see American Iron and Steel Mfg. Co. v. Seaboard Air Line Railway Co., 1914, 233 U.S. 261, 266, 34 S.Ct. 502, 58 L.Ed. 949; 3 Collier on Bankruptcy (14th Ed.) § 63.16. In seeking a fair and equitable distribution of a bankrupt’s assets, courts have recognized exceptions to the general rule and have allowed interest where (1)" }, { "docid": "23312805", "title": "", "text": "a tax claim supported by a lien prior to the filing of the petition in bankruptcy. The general rule holds that interest does not accrue after the petition is filed. This rule is a “fundamental principle” derived from the bankruptcy theory that “everything stops at a certain date.” Sexton v. Dreyfus, 1911, 219 U.S. 339, 344, 31 S.Ct. 256, 257, 55 L.Ed. 244; City of New York v. Saper, 1949, 336 U.S. 328, 330, 69 S.Ct. 554, 93 L.Ed. 710. “The delay in distribution is the act of the law; it is a necessary incident to the settlement of the estate.” Thomas v. Western Car Co., 1893, 149 U.S. 95, 116, 13 S.Ct. 824, 833, 37 L.Ed. 663; see American Iron and Steel Mfg. Co. v. Seaboard Air Line Railway Co., 1914, 233 U.S. 261, 266, 34 S.Ct. 502, 58 L.Ed. 949; 3 Collier on Bankruptcy (14th Ed.) § 63.16. In seeking a fair and equitable distribution of a bankrupt’s assets, courts have recognized exceptions to the general rule and have allowed interest where (1) the alleged bankrupt proves solvent, Beecher v. Leavenworth State Bank, 9 Cir., 1951, 192 F.2d 10; Littleton v. Kincaid, 4 Cir., 1950, 179 F.2d 848, 27 A.L.R.2d 572, (2) the security held by the creditor as collateral produces income after filing of the petition, Beecher v. Leavenworth State Bank, supra, and (3) the security is sufficient to pay interest as well as the principal of the claim. In re Macomb Trailer Coach, 6 Cir., 1953, 200 F.2d 611, 613. Although at least one circuit entertains doubt with respect to recognition of the third exception, it has been accorded general acceptance and, until Congress or the Supreme Court declares otherwise, is the rule in this circuit. Palo Alto Mutual Savings and Loan Ass’n v. Williams, 9 Cir., 1957, 245 F.2d 77; Jefferson Standard Life Ins. Co. v. United States, 9 Cir., 1957, 247 F.2d 777; see cases collected in United States v. Harrington, 4 Cir., 1959, 269 F.2d 719, note 7. Relying on this exception, the Government urges that, as a secured creditor by virtue of" }, { "docid": "10671025", "title": "", "text": "petition interest to the Banks by the debenture holders should King Resources go into reorganization. Because the Banks are not parties to the Indentures, eases cited by them in support of the proposition that subordination agreements between parties are recognized in bankruptcy are not too helpful. See, Bank of America Nat’l Trust & Sav. Ass’n v. Erickson (1941) 9 Cir., 117 F.2d 796; Re Aktiebolaget, Kreuger & Toll (1938) 2 Cir., 96 F.2d 768; Bird & Sons Sales Corp. v. Tobin (1935) 8 Cir., 78 F.2d 371; In re National Discount Corp. (1963) W.D.S.C., 212 F.Supp. 929, and 3A Collier on Bankruptcy § 65.06. The Banks rely on Bruning v. United States (1964) 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772, to support their claim of a right to charge the post petition interest against the debenture holders. I think the case is inapposite. Bruning failed to pay withholding and FICA taxes, and, of course, the government’s claim for those taxes was not discharged in Bruning’s bankruptcy. Bruning v. United States holds only that the taxpayer owed the taxes plus interest because the debt was not dischargeable. Chief Justice Warren said: “Finally, petitioner urgés that we consider the present case in light of the decision in New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710. As to claims against the trustee in bankruptcy, the general rule for liquidation of the bankruptcy estate has long been that a creditor will be allowed interest only to the date of the petition in bankruptcy. Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244. In New York v. Saper, supra, this Court held that the general rule applies to claims against the trustee for taxes as well as for other debts. But the instant case concerns the debtor’s personal liability for post-petition interest on a debt for taxes which survives bankruptcy to the extent that it is not paid out of the estate. Petitioner asserts that the traditional rule which denies post-petition interest as a claim against the bankruptcy estate also applies to discharge the debtor" }, { "docid": "7190258", "title": "", "text": "74 L.Ed.2d 155 (1982). As the Supreme Court has explained: Exaction of interest, where the power of a debtor to pay even his contractual obligations is suspended by law, has been prohibited because it was considered in the nature of a penalty imposed because of delay in prompt payment — a delay necessitated by law if the courts are properly to preserve and protect the estate for the benefit of all interests involved.... “The delay in distribution is the act of the law; it is a necessary incident to the settlement of the estate.” Thomas v. Western Car Co., 149 U.S. 95, 116-117 [13 S.Ct. 824, 833, 37 L.Ed. 663]. Cf. American Iron Co., v. Seaboard Air Line, 233 U.S. 261 [34 S.Ct. 502, 58 L.Ed. 949]. Courts have felt that it would be inequitable for anyone to gain an advantage or suffer a loss because of such delay. Sexton v. Dreyfus, 219 U.S. 339, 346 [31 S.Ct. 256, 258, 55 L.Ed. 244]. Accrual of simple interest oh unsecured claims in bankruptcy was prohibited in order that the administrative inconvenience of continuous recomputation of interest causing recomputation of claims could be avoided. Moreover, different creditors whose claims bore diverse interest rates or were paid by the bankruptcy court on different dates would suffer neither gain nor loss caused solely by delay. Vanston Bondholders Protective Committee v. Green, 329 U.S. at 163-64, 67 S.Ct. at 240 (footnote omitted). Historically governmental entities’ claims for past due taxes received special treatment, accruing postpetition interest until the date of payment. See City of New York v. Saper, 336 U.S. 328, 333, 69 S.Ct. 554, 557, 93 L.Ed. 710. In Saper, however, the Supreme Court held that the general prohibition against the payment of postpetition interest embraced tax liens in bankruptcy cases. Id. at 338, 69 S.Ct. at 559. Saper’s ban on postpetition interest for tax claims has been extended to Chapter X reorganizations, United States v. Edens, 189 F.2d 876, 877 (4th Cir.1951), aff’d per curiam, 342 U.S. 912, 72 S.Ct. 357, 96 L.Ed. 682 (1952); Chapter XI arrangements, Massachusetts v. Thompson, 190 F.2d" } ]

[ { "docid": "7039356", "title": "", "text": "§ 19 of the Criminal Code) does not reach the conduct laid as an offense in the prosecution here. This is not because we deny the power of Congress to enforce by appropriate criminal sanction every right guaranteed by the Due Process Clause of the Fourteenth Amendment; nor is it because we fully accept the course of reasoning of the court below. We base our decision on the history of § 241, its text and context, the statutory framework in which it stands, its practical and judicial application — controlling elements in construing a federal criminal provision that affects the wise adjustment between State responsibility and national control of essentially local affairs. The elements all converge in one direction. They lead us to hold that § 241 only covers conduct which interferes with rights arising from the substantive powers of the Federal Government. What is now known as § 241 originated as § 6 of the Act of May 31, 1870, 16 Stat. 140. That statute was entitled “An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes.” In furtherance of its chief end of assuring the right of Negroes to vote, it provided in §§ 2 and 3 that it should be a misdemeanor for any “person or officer” wrongfully to fail in a duty imposed on him by State law to perform or permit performance of acts necessary to registering or voting. In § 4 interference with elections by private persons was made a similar offense. In the course of passage through Congress several sections were added which had a larger purpose. One of them, § 17, was derived from the Civil Rights Act of 1866, 14 Stat. 27, and was designed to “secure to all persons the equal protection of the laws.” It imposed imprisonment up to one year and a fine up to one thousand dollars on “any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any" } ]

[ { "docid": "746941", "title": "", "text": "petitioner Snyder’s complaint. II. A. The case at bar requires this court to ascertain the appropriate standard of conduct for state prison officials under the Eighth Amendment, the breach of which will lead to civil liability under Section 1983. In discussing Section 1983 liability for violation of a constitutional right, it is important to keep the statutory standard of conduct under the statute 42 U.S.C. § 1983 analytically separate from the constitutional standard of conduct. Section 1983 provides in pertinent part that “[ejvery person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen ... to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured . . 42 U.S.C. § 1983 (1974). The statute does not expressly limit itself to intentional or reckless actions or failures to act, for no standard of conduct is expressly set forth in the statute; therefore, a plain reading of the statute’s language leads one to the conclusion that negligent conduct by a state official acting under color of state law, when such conduct leads to the deprivation of a constitutional right, is sufficient to give the aggrieved plaintiff a cause of action in federal court. Judicial interpretations of Section 1983 support the conclusion that negligence is enough to state a federal cause of action. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the landmark decision which imparted the modern vitality to Section 1983, contains significant language to the effect that the statute does not speak only to intentional misconduct. In contrasting the civil provisions of Section 1983 with the criminal provisions of the Civil Rights Act of 1866, the Monroe Court wrote: In [Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)] we dealt with a statute that imposed criminal penalties for acts “wilfully” done. We construed that word in its setting to mean the doing of an act with “a specific intent to deprive a person of a federal right.” . . . We" }, { "docid": "840921", "title": "", "text": "claims against the City are asserted directly under the Fourteenth Amendment, § 1983 restrictions on civil rights actions are not necessarily dis-positive, but cases decided under § 1983 are a useful starting point in determining the degree of culpability required. In Monroe v. Pape, supra, 365 U.S. at 187, 81 S.Ct. at 484, the Supreme Court contrasted the civil provisions of § 1983 with the criminal provisions of the Civil Rights Act of 1866 (now 18 U.S.C.A. § 242) as follows: “In [Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)] we dealt with a statute that imposed criminal penalties for acts ‘wilfully’ done. We construed that word in its setting to mean the doing of an act with ‘a specific intent to deprive a person of a federal right.’ 325 U.S., at 103, 65 S.Ct. 1031, 1036. We do not think that gloss should be placed on § [1983] which we have here. The word ‘wilfully’ does not appear in § [1983]. Moreover, § [1983] provides a civil remedy, while in the Screws case we dealt with a criminal law challenged on the ground of vagueness. Section [1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” The Court thus held that a specific intent (purpose) to violate a constitutional right is not required in a § 1983 action; it did not address the question whether a general intent to commit certain acts — without regard to whether those acts were specifically intended to violate an individual’s civil rights — was needed in a § 1983 action. See Mullins v. City of River Rouge, 338 F.Supp. 26, 29 (E.D.Mich.1972). Some courts have relied on Monroe to base § 1983 liability on simple negligence rather than intent. Other courts have limited negligence liability in § 1983 actions to “gross and culpable negligence” rather than “simple negligence or inadvertence.” This appears to be a criminal negligence standard. See Jenkins v. Averett, 424 F.2d 1228, 1231, 1232 (4th Cir. 1970) (citing criminal assault cases as" }, { "docid": "21227602", "title": "", "text": "duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor.” Originally concerned only with the equal civil rights secured by section 1 of the 1866 Act, section 2 was expanded in 1874 to impose the same criminal sanctions for deprivations of any “rights, privileges and immunities” secured by the Constitution. See Rev.Stat. § 5510 (1875). In 1909, Congress added the requirement that such deprivations be made “willfully,” Act of March 4, 1909, 35 Stat. 1092, although Senator Trumbull had expressed the view in the original debates that there could be no convictions under the section without a showing of criminal intent. 43 Cong.Globe, 39th Cong., 1st Sess. at 1758. See generally Screws v. United States, 325 U.S. 91, 98-100, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). In all other respects, including the reference to “persons” acting “under color of any law,” 18 U.S.C. § 242 is identical to section 2 of the 1866 Act. . See e. g., Williams v. United States, 341 U.S. 97 (1951) 71 S.Ct. 576, 95 L.Ed. 774 (special policeman coercing confession) ; Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031 (1945) (sheriff beating arrested Negro). In both instances the Supreme Court applied 18 U.S.C. § 242, the successor to section 2 of the Civil Rights Act, to penalize illegal activities of police officials unrelated to any occurrences in „ the judicial process itself. . Concern was not merely with denial of rights in the courtroom. Congressional preoccupation with the role of state officials in the denial of Negroes’ equal civil rights was demonstrated in still another way. Congress was aware that state officials who were unwilling to join in denying Negroes their equal civil rights might subject themselves to the possibility of prosecution in the state courts. For the protection of such officials the bill was therefore amended in the House to permit any state official to remove to the federal court any prosecution brought against him in the state court “for refusing to do any act" }, { "docid": "22636077", "title": "", "text": "forms of official violation of federally protected rights.” “[Section 1983] in the Revised Statutes of 1874 was enlarged to provide protection for rights, privileges, or immunities secured by federal law as well [as those secured by the Constitution].” “[T]he provision in the Revised Statutes was enlarged to provide protection for rights, privileges, or immunities secured by federal law as well [as those secured by the Constitution].” “The right of action given by [§ 1 of the Civil Rights Act of 1871] was later . . . extended to include rights, privileges and immunities secured by the laws of the United States as well as by the Constitution.” The Court does not question the continuing validity of Hagans. Indeed, the Court’s remand in No. 77-719 leaves open the opportunity for respondents to seek to amend their complaint to allege, if they can, a nonfrivolous constitutional claim. Their statutory claim, on which suit is authorized by § 1983, would then qualify as a pendent claim within the jurisdiction of the District Court, as both Rosado and Hagans recognize. Title 18 U. S. C. §§ 241 and 242 encompass the same rights. See United States v. Price, 383 U. S. 787, 797 (1966); United States v. Guest, 383 U. S., at 753; Screws v. United States, 325 U. S. 91, 119 (1945) (“There are, however, no differences in the basic rights guarded [by §§241 and 242]”) (opinion of Rutledge, J.). Another early case, United States v. Cruikshank, 92 U. S. 542 (1876), concerned convictions under what is now § 241 of persons accused of disrupting a meeting of blacks, and proceeding to lynch two of those who had been at the meeting. The Court held that because the right of peaceable assembly was an attribute of national citizenship, 92 U. S., at 551, rather than a right granted initially by the Constitution, deprivation of this right was not proscribed by the “Constitution or laws” language of § 6 of the Civil Rights Act of 1870. Three years later, the Court concluded that discrimination against Chinese in contravention of a treaty between the United" }, { "docid": "22295069", "title": "", "text": "1871. Any “confusion surrounding these cases derives partly from the factual contexts of the cases (most fall within traditional ‘inadequate’ or ‘futile’ exceptions) and partly from the puzzling brevity of the courts’ explanations for such a no-exhaustion rule.” Comment, Exhaustion of State Administrative Remedies Under the Civil Rights Act, 8 Ind.L.Rev. 565, 570 (1975). Yet careful examination of the concerns of Congress and the decisions of the Supreme Court should remove any confusion and solve any puzzle surrounding the Court’s declaration of a no-exhaustion rule in all 1983 actions. I. SECTION 1983 AND THE COURT A. The Early History of Restrictive Judicial Interpretation Section 1983 was enacted as part of the Civil Rights Act of 1871 (the “Ku Klux Klan Act”). The section provides a private, federal remedy for persons deprived of federal rights under color of state law: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. [42 U.S.C. § 1983.] Though this language is broad and inclusive, section 1983 initially proved ineffective as a shield against state violation of federal rights. Restrictive judicial interpretation permitted a section 1983 action only to vindicate section 1983 offenses actually committed by the states. Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875). In the 1940’s, the Supreme Court began to allow full implementation of the Civil Rights Act by recognizing the broad reach of the words “under color of state law.” 42 U.S.C. § 1983. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Hague v. CIO, 307 U.S. 496, 59" }, { "docid": "21227601", "title": "", "text": "Trumbull averted time and again to deprivations of civil rights by both “State judges and other officials” and by “judges or Governors or ministerial officers.” Id. at 1758 (emphasis added), a clear indication that Congress was concerned with more than just facial statutory denials of equal civil rights, occurring at the trial itself. . As originally introduced, this portion of the bill referred to persons acting under “cover” of authority; “cover” was changed to “color” in the final version, with no apparent change in meaning. . This is now 18 U.S.O.A. § 242 (1958). Original section 2 provided: “[A]ny person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor.” Originally concerned only with the equal civil rights secured by section 1 of the 1866 Act, section 2 was expanded in 1874 to impose the same criminal sanctions for deprivations of any “rights, privileges and immunities” secured by the Constitution. See Rev.Stat. § 5510 (1875). In 1909, Congress added the requirement that such deprivations be made “willfully,” Act of March 4, 1909, 35 Stat. 1092, although Senator Trumbull had expressed the view in the original debates that there could be no convictions under the section without a showing of criminal intent. 43 Cong.Globe, 39th Cong., 1st Sess. at 1758. See generally Screws v. United States, 325 U.S. 91, 98-100, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). In all other respects, including the reference to “persons” acting “under color of any law,” 18 U.S.C. § 242 is identical to section 2 of the 1866 Act. . See e. g., Williams" }, { "docid": "115335", "title": "", "text": "in the due observance of all the constitutional guarantees, including those that bear the most directly on private rights, and we think it perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief.” . The ishes of Washington> Tangipahoa, & Tammany, St. Helena, Livingston, Ascension, East Feliciana, West FeliciEast Baton Rouge, West Baton R Pointe c and IberviUe- . Aff’d, sub. nom. United States v. Thomas, 1962, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535. . On two occasions, the Court found it necessary to warn the witnesses of the penalty for perjury. The Court recessed the hearing to allow time for the wit nesses to refresh their recollection, and to find, if possible, any membership lists. On one occasion, a witness pleaded the 5th Amendment when, in a colloquy with the Court, it was apparent that he was afraid of klan reprisal for testifying as to klan records; he withdrew his plea of privilege and testified. . Romans, Chap. II, v. 10-11. . See United States v. Cruikshank, 1875, 92 U.S. 542, 23 L.Ed. 588; Slaughter-House Cases, 1873, 16 Wall. 36, 21 L.Ed. 394. . In 1894 Congress repealed most of the provisions dealing with federal supervision of elections. Two general provisions for criminal sanctions were left standing: 42 U.S.C. § 241 (originally Section 6 of the Civil Rights Act of 1870, later Section 5508 of the Revised Statutes) providing criminal sanctions against conspiracies to deprive any citizen of any right secured by the Constitution and laws of the United States; and 42 U.S.C. § 242 (originally Section 2 of the Civil Rights Act of 1866, later Section 5510 of the Revised Statutes (1873), as amended in 1909, 35 Stat. 1092 by adding the word “wilfully”) providing criminal sanctions against the deprivation of constitutional rights, privileges, and immunities under color of state law. See United States v. Williams, 1951, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758 restricting Section 241 to those cases in which the right allegedly violated is an incident to national" }, { "docid": "22579081", "title": "", "text": "U.S.C. § 241, originally enacted as the Enforcement Act of 1870, and 18 U.S.C. § 242, which derives from the Civil Rights Act of 1866. See United States v. Price, 383 U.S. 787, 800-20, 86 S.Ct. 1152, 1160-70, 16 L.Ed.2d 267 (1966). In their present form, these statutes establish criminal penalties (1) for conspiring to “injure” another “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States,” 18 U.S.C. § 241, and (2) for acting “willfully” “under color of any law” to “subject” another “to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 18 U.S.C. § 242. In interpreting these enactments, the Supreme Court’s plurality opinion in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), remains the touchstone for analysis. The defendants in Screws challenged their convictions under section 242 on the grounds that the statute was unconstitutionally vague, arguing that it lacked an “ascertainable standard of guilt” insofar as it mandated criminal penalties for acts in violation of whatever rights might be protected by the “broad and fluid definitions” of the Due Process Clause. Id. at 95, 65 S.Ct. at 1032. The Court acknowledged that section 242 might well be impermissibly vague if it were interpreted to require only general criminal intent to support a conviction. The general standard of intent holds that “[i]f a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.” 325 U.S. at 96, 65 S.Ct. at 1033 (quoting Ellis v. United States, 206 U.S. 246, 257, 27 S.Ct. 600, 602, 51 L.Ed. 1047 (1907)). Permitting guilt under section 242 to turn on this standard of intent, the Court suggested, could allow a law enforcement officer to be punished for doing “an act which some court later holds deprives a person of due process of" }, { "docid": "21227595", "title": "", "text": "under color of State law, they or any of them may be deprived of rights * * *.” Cong. Globe, 42 Cong., 1st Sess.App. 68. (Report by Mr. Shellabarger, reporting out the bill which became the 1871 Act.) (Emphasis added.) The second section of the 1866 Act provided a criminal penalty against- any state official who, acting under color of authority of a state law, statute, ordinance, regulation or custom, deprived a person of any of the rights granted in section 1. See n. 25 infra, and it was this same set of facts that authorized removal under section 3. See infra nn„ 25-32 and accompanying text. With respect to denials of equal civil rights, the 1871 Act was thus the third leg of a triangle. A person deprived of rights secured by section 1 of the 1866 Act could: (a) have the offending official subjected to criminal prosecution under section 2 of the 1866 Act, cf., e.g., Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (denial of broad due process rights) ; (b) protect the affected rights against further intrusions under section 3 of the same Act by removal to a federal court, see Peacock v. City of Greenwood, 347 F.2d 679 (5th Cir.1965) (suppression of equal civil rights by mass arrests); and (c) secure a civil remedy under section 1 of the 1871 Act against the offending state official. See, e.g., Dombrowski v. Pfister, 381 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (injunction against continuing suppression of equal civil rights under color of state law). . Use of the term “laws” in a broad sense to include “constitutions” as well as “statutes” was not unusual in the Reconstruction Congress. Section 2 of the 1866 Civil Rights Act, which established the preconditions for a section 3 removal, referred to deprivations of rights by any person under color of “any law, statute, ordinance, regulation or custom.” “Laws” in this sense clearly embraces state constitutions. When the 1875 revisor came to recodify the various provisions of the 1866 Act, it was therefore natural" }, { "docid": "22295070", "title": "", "text": "jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. [42 U.S.C. § 1983.] Though this language is broad and inclusive, section 1983 initially proved ineffective as a shield against state violation of federal rights. Restrictive judicial interpretation permitted a section 1983 action only to vindicate section 1983 offenses actually committed by the states. Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875). In the 1940’s, the Supreme Court began to allow full implementation of the Civil Rights Act by recognizing the broad reach of the words “under color of state law.” 42 U.S.C. § 1983. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). This new recognition of the substantive scope of section 1983, however, failed to remove the major procedural impediment to its full effectiveness: the judicially-created requirement of exhaustion of state judicial and administrative remedies. As late as 1960, less than 300 federal suits were brought under all of the civil rights acts. Administrative Office of the United States Courts, 1960 Annual Report of the Director 232, table C 2. “Section 1983, enacted as part of the Civil Rights Act of 1871 to enforce the guarantees of the fourteenth amendment by providing a cause of action in federal court, lay dormant as a result of restrictive judicial construction until the Supreme Court’s 1961 decision in Monroe v. Pape.” Developments in the Law — Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1135-36 (1977). B. The Seminal Decision of Monroe v. Pape In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), an Illinois resident sought damages under section 1983 from the City of Chicago and individual policemen for" }, { "docid": "115337", "title": "", "text": "citizenship. See also Screws v. United States, 1945, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 construing Section 242 as requiring specific intent to deprive a person of the right made specific by the Constitution or laws of the United States. Sections 241 and 242 are now before the Supreme Court again. United States v. Price, Nos. 59, 60, October Term, 1965; United States v. Quest, No. 65, October Term, 1965. . See Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; United States v. Reese, 1876, 92 U.S. 214, 23 L.Ed. 563. . Hence the compromise affecting jury trials in the 1957 Act: criminal contempt cases arising under the act may be tried by district courts without juries, except where a person convicted is fined more than $300 or imprisoned for more than 6 months. 71 Stat. 638 (1957), 42 U.S.C. § 1995. . President Truman’s Committee on Civil Rights submitted equally broad recommendations. See Report, To Secure These Rights, 151-161 (1947). . In a hearing before the House Judiciary Committee on the Civil Rights Bill, Attorney General Herbert Brownell explicitly explained the purposes and scope of the proposed amendments to Section 1971 of Title 42: “The most obvious one of these defects in the law is that it does not protect the voters in Federal elections from unlawful interference with their voting rights by private persons — in other words, 1971 applies only to those who act ‘under color of law’ which means public officials, and the activities of private persons and organisations designed to disenfranchise voters in Federal or State elections on account of race or color are not covered by the present provisions of 1971. And so we say that the statute fails to afford the voters full protection from discrimination which was contemplated by the Constitution, especially the 14th and 15th amendments. “Also this section 1971 is defective in another respect, because it fails to lodge in the Department of Justice and the Attorney General any authority to invoke civil remedies for the enforcement of voting rights. And it is" }, { "docid": "22579080", "title": "", "text": "On the basis of these incidents among others, appellants were tried by jury under a nineteen count indictment. The first count charged all four appellants with a criminal conspiracy whose object was the deprivation of constitutional rights, in violation of 18 U.S.C. § 241. The jury returned a verdict of guilty on the conspiracy count. The other counts delineated the specific substantive violations of these rights committed by the individual officers, in violation of 18 U.S.C. § 242. The jury voted to convict on most of these counts. In particular, each appellant was convicted for his role in one or more episodes involving excessive force. Appellants were sentenced under the Guidelines to terms ranging from thirty-six to ninety-six months. They filed timely notices of appeal. A panel of this court subsequently granted their motions for bail pending appeal. II The fundamental question raised in these appeals is whether the district court’s instructions to the jury properly set forth the law applicable to a criminal prosecution for federal civil rights violations. The relevant statutes are 18 U.S.C. § 241, originally enacted as the Enforcement Act of 1870, and 18 U.S.C. § 242, which derives from the Civil Rights Act of 1866. See United States v. Price, 383 U.S. 787, 800-20, 86 S.Ct. 1152, 1160-70, 16 L.Ed.2d 267 (1966). In their present form, these statutes establish criminal penalties (1) for conspiring to “injure” another “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States,” 18 U.S.C. § 241, and (2) for acting “willfully” “under color of any law” to “subject” another “to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 18 U.S.C. § 242. In interpreting these enactments, the Supreme Court’s plurality opinion in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), remains the touchstone for analysis. The defendants in Screws challenged their convictions under section 242 on the grounds that the statute was unconstitutionally vague, arguing that it lacked an" }, { "docid": "22636078", "title": "", "text": "recognize. Title 18 U. S. C. §§ 241 and 242 encompass the same rights. See United States v. Price, 383 U. S. 787, 797 (1966); United States v. Guest, 383 U. S., at 753; Screws v. United States, 325 U. S. 91, 119 (1945) (“There are, however, no differences in the basic rights guarded [by §§241 and 242]”) (opinion of Rutledge, J.). Another early case, United States v. Cruikshank, 92 U. S. 542 (1876), concerned convictions under what is now § 241 of persons accused of disrupting a meeting of blacks, and proceeding to lynch two of those who had been at the meeting. The Court held that because the right of peaceable assembly was an attribute of national citizenship, 92 U. S., at 551, rather than a right granted initially by the Constitution, deprivation of this right was not proscribed by the “Constitution or laws” language of § 6 of the Civil Rights Act of 1870. Three years later, the Court concluded that discrimination against Chinese in contravention of a treaty between the United States and China would be within the proscription of §241 but for the language in that statute limiting its application to denials of the rights of “citizens.” Baldwin v. Franks, 120 U. S. 678, 690-692 (1887); see also id., at 694 (Harlan, J., dissenting). Monroe v. Paye, 365 U. S. 167, 185 (1961). Specific intent is required for conviction under either § 241 or § 242. United States v. Guest, supra, at 753-754; Screws v. United States, supra. The word “willfully” was added to § 242 in 1909, 35 Stat. 1092, but such language has never been in § 1983. See Monroe v. Pape, supra, at 206 (opinion of Frankfurter, J.). The marginal notation for §663 (12) states: “Suits to redress the deprivation of rights secured by the Constitution and laws to persons within jurisdiction of United States.” Cross-cites are to § 1 of the 1871 Act, §§ 16, 18 of the 1870 Act, and §3 of the 1866 Act; § 1 of the 1871 Act had referred to § 3 of the 1866 Act" }, { "docid": "115336", "title": "", "text": "v. 10-11. . See United States v. Cruikshank, 1875, 92 U.S. 542, 23 L.Ed. 588; Slaughter-House Cases, 1873, 16 Wall. 36, 21 L.Ed. 394. . In 1894 Congress repealed most of the provisions dealing with federal supervision of elections. Two general provisions for criminal sanctions were left standing: 42 U.S.C. § 241 (originally Section 6 of the Civil Rights Act of 1870, later Section 5508 of the Revised Statutes) providing criminal sanctions against conspiracies to deprive any citizen of any right secured by the Constitution and laws of the United States; and 42 U.S.C. § 242 (originally Section 2 of the Civil Rights Act of 1866, later Section 5510 of the Revised Statutes (1873), as amended in 1909, 35 Stat. 1092 by adding the word “wilfully”) providing criminal sanctions against the deprivation of constitutional rights, privileges, and immunities under color of state law. See United States v. Williams, 1951, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758 restricting Section 241 to those cases in which the right allegedly violated is an incident to national citizenship. See also Screws v. United States, 1945, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 construing Section 242 as requiring specific intent to deprive a person of the right made specific by the Constitution or laws of the United States. Sections 241 and 242 are now before the Supreme Court again. United States v. Price, Nos. 59, 60, October Term, 1965; United States v. Quest, No. 65, October Term, 1965. . See Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; United States v. Reese, 1876, 92 U.S. 214, 23 L.Ed. 563. . Hence the compromise affecting jury trials in the 1957 Act: criminal contempt cases arising under the act may be tried by district courts without juries, except where a person convicted is fined more than $300 or imprisoned for more than 6 months. 71 Stat. 638 (1957), 42 U.S.C. § 1995. . President Truman’s Committee on Civil Rights submitted equally broad recommendations. See Report, To Secure These Rights, 151-161 (1947). . In a hearing before the House" }, { "docid": "23196405", "title": "", "text": "again and again described by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people.\" Cong.Globe, 42d Cong., 1st Sess., app. at 68 (1871). . Additional support for reading § 1983 as intending a remedy for wrongful killings under color of law comes from an examination of a criminal civil rights act counterpart. Section 1 of the 1871 act was modeled after the criminal provision contained in § 2 of the Civil Rights Act of 1866 (current version at 18 U.S.C. § 242). See Monroe, 365 U.S. at 185, 81 S.Ct. at 483; Cong.Globe, 42d Cong., 1st Sess., app. at 68 (statement of Rep. Shellabarger). With the exception that § 1 of the 1871 act was not limited to former slaves as was the earlier enactment, Rep. Shellabarger informed the House that § 1 of the proposed act was intended to establish a civil remedy in cases in which § 2 of the 1866 act created a criminal sanction. Id. Thus, \"[bjecause § 2 of the Civil Rights Act of 1866 had extended the criminal sanction to situations in which persons acting under color of state law deprived others of their life, there can be little doubt that § 1 of the Civil Rights Act of 1987 was also intended to provide a civil remedy in such cases.” Steinglass, supra, at 648; see also Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Brazier v. Cherry, 293 F.2d 401, 404 & n. 9 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961). . Section 1988 does not specify when federal law is deficient or what federal law courts must look to before making a deficiency finding. See generally Eisenberg, State Law in Federal Civil Rights Cases: The Proper Scope of Section 1988, 128 U.Pa.L.Rev. 499 (1980); Kreimer, The" }, { "docid": "22636039", "title": "", "text": "of the 1870 Act (criminalizing private as well as color-of-law conspiracies to deprive persons of their federal constitutional or statutory-rights) was retained essentially unchanged as § 5508 of the Revised Statutes, § 17 of the 1870 Act (the criminal provision originally enacted as § 2 of the 1866 Act and directed solely at deprivations under color of state law) was expanded to parallel § 5508. Section 17 had criminalized only the infringement of the specific rights of equality guaranteed by § 16 of the 1870 Act, but the new provision, § 5510 of the Revised Statutes, was “broadened to include as wide a range of rights as [§ 5508] already did: ‘any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States.’ ” United States v. Price, 383 U. S., at 803. Second, the civil remedy directed solely at deprivations under color of law was likewise expanded to encompass all statutory as well as constitutional rights. Thus, whereas § 1 of the 1871 Act had provided for redress of color-of-law deprivations of rights “secured by the Constitution of the United States,” § 1979 of the Revised Statutes provided a civil remedy for such deprivation of rights secured by the “Constitution and laws,” the substantive federal rights protected thus mirroring those covered by §§ 5508 and 5510. As noted with respect to the widened scope of § 5510: “The substantial change thus effected was made with the customary stout assertions of the codifiers that they had merely clarified and reorganized without changing substance.” United States v. Price, supra, at 803 (footnote omitted). Third, the jurisdictional provisions of the various Civil Rights Acts were split off and consolidated in the Revised Statutes. Section 3 of the 1866 Act (re-enacted under § 18 of the 1870 Act), which provided federal jurisdiction for “all causes . . . affecting persons . . . denied” the rights now stated in §§ 1977 and 1978, was entirely deleted. The jurisdictional provision of the 1871 Act, authorizing federal courts to entertain civil suits brought pursuant thereto, became the basis for the" }, { "docid": "22636079", "title": "", "text": "States and China would be within the proscription of §241 but for the language in that statute limiting its application to denials of the rights of “citizens.” Baldwin v. Franks, 120 U. S. 678, 690-692 (1887); see also id., at 694 (Harlan, J., dissenting). Monroe v. Paye, 365 U. S. 167, 185 (1961). Specific intent is required for conviction under either § 241 or § 242. United States v. Guest, supra, at 753-754; Screws v. United States, supra. The word “willfully” was added to § 242 in 1909, 35 Stat. 1092, but such language has never been in § 1983. See Monroe v. Pape, supra, at 206 (opinion of Frankfurter, J.). The marginal notation for §663 (12) states: “Suits to redress the deprivation of rights secured by the Constitution and laws to persons within jurisdiction of United States.” Cross-cites are to § 1 of the 1871 Act, §§ 16, 18 of the 1870 Act, and §3 of the 1866 Act; § 1 of the 1871 Act had referred to § 3 of the 1866 Act for the rules governing appeal and other matters, see n. 5, supra. In addition, there is a bracketed citation after the text of §563 (12) — and after §629 (16) — as follows: “[See §§ 1977, 1979].” Rev. Stat. 95, 111 (1874). The marginal notation for § 1979 states: “Civil action for deprivation of rights.” Section 1 of the 1871 Act is cross-cited, and there is a bracketed citation to §563 and §629. Rev. Stat. 348 (1874). The marginal notation for §5510 states: “Depriving citizens of civil rights under color of State laws.” The cross-cite is to § 17 of the 1870 Act, and there is a bracketed citation to § 1979. Rev. Stat. 1074 (1874). During the discussion of the Revised Statutes in Congress, Representative Lawrence read the relevant provisions of the post-Civil War Acts and then read § 1979. 2 Cong. Rec. 828-829 (1874). He went on to point out that whereas the version of § 5510 eventually enacted by Congress referred to rights secured by the “Constitution and laws,” the revisers' initial" }, { "docid": "22371732", "title": "", "text": "their contracts with the City.” (at page 707). It is interesting in this respect to compare Screws v. United States, 1945, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, a criminal case, where there was charged a violation of the then existing Title 18 U.S.Code, § 52, (now 18 U.S.C.A. § 242) and a conspiracy to violate the section under the general conspiracy section. The court pointed out that the Congress in 1909 had added the word “willfully” but that to constitute the offense, more than what would be the ordinary requirement of proof of specific intent was required. The court said at page 107 of 325 U.S., at page 1038 of 65 S.Ct.: “But in view of our construction of the word ‘willfully’ the jury should have been further instructed that it was not sufficient that petitioners had a generally bad purpose. To convict it was necessary for them to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e. g. the right to be tried by a court rather than by ordeal. * * * ”. Thus, in two cases, one involving the criminal statute and one involving the civil statute, the court reached similar results which we can equate, namely that a specific intent to violate one’s constitutional rights was required under the criminal statutes and conduct which was “purposefully discriminating,” as to such rights was required under the civil statute. Passing to Collins v. Hardyman, 1951, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253, a civil action under old Title 8 U.S.Code, § 47(3) (now § 1985(3) Title 42 U.S. C.A.) no officers of the State were made defendants and although the action did not purport to rely upon old Title 8, § 43, present § 1983, Title 42 U.S.C.A. which expressly required action under color of State authority, nevertheless the court in substance read the same requirement into § 47(3) (now § 1985(3) Title 42 U.S.C.A.). The court said at page 661 of 341 U.S., at page 941 of 71 S.Ct., “* * * it is clear that" }, { "docid": "22200467", "title": "", "text": "is not the only issue involved; the question of whether they were acting under “color of law” is also a vital one. The Supreme Court, in the case of Screws v. United States, 1944, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, was wrestling with the constitutionality of Section 20 of the Criminal Code, which is presently 18 U.S.C. § 242, and which section was originally derived from the Revised Statutes §§ 5509 and 5510 which, in turn, were part of the original Force Acts of 1871, which civil counterparts, enacted at the same time, are presently the Civil-Rights Act (42 U.S.C. §§ 1983 arid 1985). Section 20 of the Criminal Code was attacked as being too broad and nebulous to set forth a standard of guilt for a crime. The Supreme Court, speaking through Mr..Justice Douglas, held that the Court must in all instances find the statute constitutional, if possible, and the Court would do so by a narrow construction, holding that the accused Negro in the custody of the sheriff was denied his constitutional right to due process of law, because the accused was killed and thus not allowed a criminal trial. The Supreme Court, in addressing itself to the questions of what officials were held guilty of violation of constitutional rights under “color of law,” held as follows in Screws, 325 U.S. 91, 108, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495, 1506: “Some of the arguments which have been advanced in support of the contrary conclusions suggest that the question under § 20 is whether Congress has made it a federal offense for a state officer to violate the law of his State. But there is no warrant' for treating the question in state law terms. The problem is not whether state law has been violated but whether an inhabitant of a State has been deprived of a federal right by one who acts under ‘color of any law.’ He who acts under ‘color’ of law may be a federal officer or a state officer. He may act under ‘color’ of federal law or of state" }, { "docid": "840920", "title": "", "text": "v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970): “. . .an allegation of negligent conduct by a state public official is not sufficient, in and of itself, to bring a claim within section 1983. More is needed than a naked averment that a tort was committed under the color of state láw; the wrongdoing must amount to a deprivation of a right, privilege, or immunity secured by the Constitution and the laws of the United States.” See also Paul v. Davis, 424 U.S. 693, 699-701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Howell v. Cataldi, 464 F.2d 272, 278-79 (3d Cir. 1972). The question in these cases is whether these plaintiffs have charged the City with a degree of culpability sufficient to constitute a claim of constitutional deprivation. The degree of culpability necessary for civil rights liability is an unsettled question. Most opinions discussing it are in § 1983 actions and it is unclear whether they reach their holding as an interpretation of that statute or on the basis of constitutional requirements. Since the claims against the City are asserted directly under the Fourteenth Amendment, § 1983 restrictions on civil rights actions are not necessarily dis-positive, but cases decided under § 1983 are a useful starting point in determining the degree of culpability required. In Monroe v. Pape, supra, 365 U.S. at 187, 81 S.Ct. at 484, the Supreme Court contrasted the civil provisions of § 1983 with the criminal provisions of the Civil Rights Act of 1866 (now 18 U.S.C.A. § 242) as follows: “In [Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)] we dealt with a statute that imposed criminal penalties for acts ‘wilfully’ done. We construed that word in its setting to mean the doing of an act with ‘a specific intent to deprive a person of a federal right.’ 325 U.S., at 103, 65 S.Ct. 1031, 1036. We do not think that gloss should be placed on § [1983] which we have here. The word ‘wilfully’ does not appear in § [1983]. Moreover, § [1983] provides a civil remedy," } ]

[ { "docid": "22588750", "title": "", "text": "to acquire the specific collateral itself; 8. Any loan or value provided to refinance the negative equity in a trade-in vehicle is not used to “acquire rights in or the use of’ the replacement vehicle collateral, as required in the Section 9-103(a)(2) definition of “purchase money obligation.” That loan or value is used to pay off the existing lien on the trade-in vehicle; 9. Since the secured claims of the Motor Vehicle Finance Group in each case included debt incurred by the debtors for the refinancing of their negative equity, which was not for a loan or value given that qualified as a purchase money obligation under Section 9 — 103(a)(2), their claims were not entirely secured by purchase money security interests; 10. Since the New York Uniform Commercial Code does not mandate a dual status rule for consumer transactions where the transaction includes both purchase money and non-purchase money obligations, which would require the Court to bifurcate these secured claims into that portion which secures a purchase money obligation and that portion which secures a non-purchase money obligation, and afford the purchase money obligation purchase money security interest treatment, the Court is free to apply either a dual status or transformation rule; and 11. The Court should adopt the transformation rule for numerous reasons, including that the Motor Vehicle Finance Group has asserted that in the majority, if not all, of these cases where negative equity has been refinanced, even after an evidentiary hearing, it would be impossible for the Court to determine the actual amount of the negative equity and the purchase money obligation. The position and principal arguments of the Motor Vehicle Finance Group in their pleadings and at the consolidated oral arguments can be summarized as follows: 1. In those cases where the debtor’s plan provided for treatment of the secured claim of a member of the Motor Vehicle Finance Group in accordance with the Section 1325(a)(9) Hanging Paragraph, rather than Section 506(a)(1), the Trustee had no standing to either object to confirmation or to bring a valuation motion; 2. Congress used the term “purchase money" } ]

[ { "docid": "4018431", "title": "", "text": "of the collateral if the value is in fact so used. (b) A security interest in goods is a purchase money security interest as follows: (1) To the extent that the goods are purchase money collateral with respect to that security interest.... Cal. U. Com.Code § 9103. Section 9103 of the California Uniform Commercial Code (UCC) defines a “purchase money security interest” by reference to “purchase money collateral,” which in turn incorporates the term “purchase money obligation.” A “purchase money obligation” is defined by reference to the “price” of the collateral or the “value given” to enable the debtor to acquire rights in the collateral. The term “price,” however, is not defined in the section. The official comment to the section amplifies the definitions by making clear that additional charges are included in the terms “purchase money obligation,” “price,” and “value given.” It provides: [T]he definition of “purchase-money obligation,” the “price” of collateral or the “value given to enable” includes obligations for expenses incurred in connection with acquiring rights in the collateral, sales taxes, duties, finance charges, interest, freight charges, costs of storage in transit, demurrage, administrative charges, expenses of collection and enforcement, attorneys’ fees, and other similar obligations. The concept of “purchase-money security interest” requires a close nexus between the acquisition of the collateral and the secured obligation. (Emphasis added.) Cal. U. Com.Code § 9103, com. 3. However, the comment does not specify whether the negative equity in a trade-in is included in these terms. WFFA asserts that because § 2981(e) of the California Automobile Sales Finance Act (ASFA) defines “cash price” to include the negative equity in a trade-in vehicle, the term “price” as used in California UCC § 9103(a)(2) similarly includes negative equity. ASFA § 2981(e) provides: As used on this chapter, unless the context otherwise requires: (e) “Cash price” means the amount for which the seller would sell and transfer to the buyer unqualified title to the motor vehicle described in the conditional sale contract, if the property were sold for cash at the seller’s place of business on the date the contract is executed, and" }, { "docid": "2370597", "title": "", "text": "that governs the priorities among creditors. Purchase money security is an exceptional category in the statutory scheme that affords priority to its holder over other creditors, but only if the security is given for the precise purpose as defined in the statute. And we should not lose sight of the fact that the lender chooses the form. Id. at 801. In the matter before me, the financed negative equity is nothing more than a refinance of the pre-existing debt owed on the Trade-In. Accordingly, it does not create the requisite close nexus between “value given” and the Johnsons’ acquisition of rights in the Vehicle. I previously have determined that financing of negative equity is not an expense incurred as part of the “price of the collateral.” Neither is it value given and used to enable a debtor to acquire rights in the collateral. 3. Financed negative equity is not a purchase money obligation. Because financed negative equity is neither an obligation incurred as “all or part of the price of the collateral” nor an obligation incurred “for value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used,” for purposes of O.R.S. § 79.0103(l)(b), financed negative equity is not a purchase money obligation. D. Applicability of the Hanging Paragraph Having determined that the financed negative equity portion of Daimler-Chrysler’s Claim is not covered by a PMSI, I now must decide what effect that determination has on treatment of the Claim under the Plan. Most courts concluding that financed negative equity is not a purchase money obligation then apply one or the other of two interpretive rules, developed under state UCC law, for dealing with the secured creditor’s PMSI: the “transformation rule” or the “dual status rule.” “The ‘transformation rule’ provides that when a transaction contains both purchase money and non-purchase money obligations, the entire transaction is transformed into a non-purchase money obligation.” In re Burt, 378 B.R. 352, 359 n. 34 (Bankr.D.Utah 2007). The dual status rule “allows a security interest to have both the status of" }, { "docid": "15850841", "title": "", "text": "“Gap insurance ... is neither mandatory, a component of the loan agreement, nor a value-enhancing add-on.... [G]ap insurance is not part of the purchase price of the collateral.”); In re White, 352 B.R. 633 (Bankr.E.D.La.2006) (Purchase money security interest does not include deficiency insurance.). Compare In re Murray, 352 B.R. 340 (Bankr.M.D.Ga.2006) (Extended service contract or warranty are “inextricably related to the collateral” and included in the purchase money security interest for the car.). . See, e.g., GMAC v. Peaslee, 373 B.R. 252 (W.D.N.Y.2007) (Applying § 9-103 of New York Uniform Commercial Code and New York Motor Vehicle Retail Installment Sales Act, negative equity is component of price of car and financing negative equity does not forfeit purchase money security interest.); In re Peirocci, 370 B.R. 489 (Bankr.N.D.N.Y. 2007) (Relying in part on New York Motor Vehicle Retail Installment Sales Act, financing of negative equity did not forfeit purchase money security interest status.); In re Graupner, 356 B.R. 907 (Bankr.M.D.Ga.2006) (Reading Georgia’s Motor Vehicle Sales Finance Act together with Georgia UCC, \"cash sale price” under MVSFA includes amount to payoff trade-in, including negative equity.), aff'd, No. 4:07-CV-37CDL, 2007 WL 1858291 (M.D.Ga. June 26, 2007). . See In re Westfall, No. 06-60297, 2007 WL 2777709 (Bankr.N.D.Ohio Sept.24, 2007) (Negative equity financed as part of car purchase is not a purchase money obligation.); In re Cohrs, 373 B.R. 107 (Bankr.E.D.Cal. 2007) (Payoff of prior car is part of a purchase money transaction when debtor actually traded-in existing vehicle; different outcome likely when facts show that debtor did not trade-in existing vehicle.); In re Pajot, 371 B.R. 139 (Bankr.E.D.Va.2007) (Portion of transaction corresponding to negative equity is not considered a purchase money security interest under Virginia law.); In re Acaya, 369 B.R. 564 (Bankr.N.D.Cal.2007) (Amount used to pay negative equity does not constitute part of the price of the collateral or value given to acquire rights in the collateral.); Citifinancial Auto v. Hernandez-Simpson (In re Hernandez-Simpson), 369 B.R. 36 (D.Kan.2007) (Negative equity financed as part of car purchase is not included in resulting PMSL); In re Price, 363 B.R. 734 (Bankr.E.D.N.C.2007) (Applying North" }, { "docid": "18270082", "title": "", "text": "the entire financing transaction, the court finds the dual status rule compelling and applicable to the facts presented by the parties. Therefore, the portion of each creditor’s claim relating to negative equity is a non-purchase-money security interest, and may be bifurcated into a secured and unsecured portion in accordance with 11 U.S.C. § 506. The remaining portion of the financing transaction, with the exception of gap insurance fees, retains its purchase-money status. Therefore, the hanging paragraph applies to the remainder, and it may not be bifurcated. I. Whether negative equity constitutes a purchase-money security interest. A number of recently published cases, In re Graupner, 356 B.R. 907 (Bankr.M.D.Ga.2006) aff'd, Case No. 4:07-CV-37, 2007 WL 1858291 (M.D. Ga. June 26, 2007), In re Peaslee, 358 B.R. 545 (Bankr.W.D.N.Y.2006) , In re Price, 363 B.R. 734 (Bankr.E.D.N.C.2007) , In re Westfall, 365 B.R. 755 (Bankr.N.D.Ohio 2007), In re Bray, 365 B.R. 850 (Bankr.W.D.Tenn.2007), and In re Acaya, 369 B.R. 564 (Bankr.N.D.Cal.2007), interpret negative equity transactions and the effect of the hanging paragraph. Peaslee, Price, West-fall, Bray, and Acaya represent the majority published view and are more persuasive in holding that the negative equity is not part of the purchase-money security interest. The court agrees with the majority view that the definition of purchase-money security interest does not encompass rolled-in debt incurred to pay off negative equity. Virginia’s Uniform Commercial Code, Va.Code Ann. § 8.9A, does not provide for the inclusion of negative equity in a purchase-money obligation. Further, no other statutes in Virginia elaborate sufficiently on the definition of purchase-money security interests to support the inclusion of negative equity. The Bankruptcy Code does not define purchase-money security interest, as used in the hanging paragraph, and state law determines what is included in the definition. In re Vega, 344 B.R. 616, 622 (Bankr.D.Kan.2006). See Pristas v. Landaus of Plymouth, Inc., 742 F.2d 797, 800 (3d Cir.1984); In re Curtis, 345 B.R. 756, 763 (Bankr.D.Utah 2006). The Virginia Code defines purchase-money security interest as a security interest “to the extent that the goods are purchase-money collateral with respect to that security interest.” Va.Code Ann." }, { "docid": "15262840", "title": "", "text": "paragraph: See In re Westfall, 376 B.R. 210 (Bankr. N.D.Ohio 2007) (Negative equity financed as part of car purchase is not a purchase money obligation.); In re Cohrs, 373 B.R. 107 (Bankr.E.D.Cal.2007) (Payoff of prior car is part of a purchase money transaction when debtor actually traded-in existing vehicle; different outcome likely when facts show that debtor did not trade-in existing vehicle.); In re Pajot, 371 B.R. 139 (Bankr.E.D.Va.2007) (Portion of transaction corresponding to negative equity is not considered a purchase money security interest under Virginia law.); In, re Acaya, 369 B.R. 564 (Bankr.N.D.Cal.2007) (Amount used to pay negative equity does not constitute part of the price of the collateral or value given to acquire rights in the collateral.); Citifinancial Auto v. Hernandez-Simpson (In re Hernandez-Simpson), 369 B.R. 36 (D.Kan.2007) (Negative equity financed as part of car purchase is not included in resulting PMSI.); In re Price, 363 B.R. 734 (Bankr.E.D.N.C.2007) (Applying North Carolina law, funds advanced to pay off negative equity on trade-in are not part of purchase money security interest.); In re Grant, 359 B.R. 438 (Bankr.W.D.N.Y.2007) (Trustee carried burden of proof that money to refinance negative equity was not part of purchase money security interest.); In re Jackson, 358 B.R. 560 (Bankr.W.D.N.Y.2007) (Refinancing of negative equity not included in purchase money security interest.); In re Vega, 344 B.R. 616 (Bankr.D.Kan.2006) (Loan proceeds used to pay off prior loan are not purchase money.). Hayes at 672, n. 24. . Judge Clark writes: According to FMC, only if the retail seller was willing not only to take the debtor’s old vehicle in trade but also to pay off the negative equity on that vehicle would the debtor have been able to buy the new vehicle. Thus, says FMC, paying off the negative equity enabled the debtor to acquire rights in the vehicle being purchased. The argument, of course, is not without force. However, it once again proves too much. By this logic, were the dealer prepared to pay off some of the debtor's credit card debt to help the debtor qualify for the car loan, that too, following FMC's" }, { "docid": "2370583", "title": "", "text": "face; it “has the same meaning that it has always had in connection with transactions for the acquisition of any collateral, including a motor vehicle, which is the actual price of the collateral being aequired.”)(quoting In re Peaslee, 358 B.R. 545, 556 (Bankr.W.D.N.Y.2006) (“Peaslee I”), rev’d, Peaslee II, 373 B.R. 252 (W.D.N.Y.2007)); In re Acaya, 369 B.R. 564, 570 (Bankr.N.D.Cal.2007)(concluding that financing used to pay negative equity does not constitute part of the price of the collateral as contemplated by UCC § 9-103; “[t]here is no indication in the [California Automobile Sales Finance Act or its legislative history] that ... ‘cash price’ was intended to effect a departure from the traditional understanding of a purchase money security interest.”). Other courts decline to use the in pari materia doctrine to graft the definition of “cash sale price” from state automobile sales and finance laws onto the term “price of the collateral” as used in the definition of a purchase money obligation under the UCC because the two statutes do not relate to the same subject matter or do not have the same purpose. See, e.g., In re Lavigne, 2007 WL 3469454 at *7. At least one court has applied in pari materia to conclude that negative equity is not part of the “price of the collateral” because the state automobile sales and finance law definition of “cash sale price” does not expressly include negative equity. In re Conyers, No. 07-50855, 379 B.R. 576, 580-82, 2007 WL 3244106 at *4-5 (Bankr.M.D.N.C. Nov.2, 2007). In another vein, one court advocates a “straightforward,” contextual reading of the phrase “price of the collateral” within the UCC, and rejects the proposition that “price of the collateral” includes negative equity. Context thus bolsters the conclusion that “price of the collateral” need not be given some exotic meaning or treated as some peculiar argot to sweep up more than the common understanding of the phrase is intended to convey. One may borrow money to buy something (e.g., a new vehicle), and also borrow additional money for some other purpose (e.g., to pay off the balance of a loan" }, { "docid": "18270081", "title": "", "text": "value of the entire claim, then the hanging paragraph will apply, and the entire claim will be considered secured and not subject to bifurcation. If the purchase-money security interest extends only partially, however, the court must then determine the effect of the non-purchase-money portion on the purchase-money status of the entire transaction. In the partial purchase-money situation, state law gives the court discretion in consumer cases to determine whether to characterize the entire transaction as non-purchase-money (the “transformation rule”), or to treat it as only partially purchase-money (the “dual status rule”). Va.Code Ann. § 8.9A-103(h). Therefore, this opinion addresses two questions in turn: 1) whether the negative equity portion is a purchase-money security interest, and 2) if it is not, whether to apply the dual status or the transformation rule to determine the treatment of the transaction as a whole. For the below reasons, the court holds that the portion of the transaction corresponding to negative equity is not considered a purchase-money security interest under Virginia law. Because the purchase-money security interest does not encompass the entire financing transaction, the court finds the dual status rule compelling and applicable to the facts presented by the parties. Therefore, the portion of each creditor’s claim relating to negative equity is a non-purchase-money security interest, and may be bifurcated into a secured and unsecured portion in accordance with 11 U.S.C. § 506. The remaining portion of the financing transaction, with the exception of gap insurance fees, retains its purchase-money status. Therefore, the hanging paragraph applies to the remainder, and it may not be bifurcated. I. Whether negative equity constitutes a purchase-money security interest. A number of recently published cases, In re Graupner, 356 B.R. 907 (Bankr.M.D.Ga.2006) aff'd, Case No. 4:07-CV-37, 2007 WL 1858291 (M.D. Ga. June 26, 2007), In re Peaslee, 358 B.R. 545 (Bankr.W.D.N.Y.2006) , In re Price, 363 B.R. 734 (Bankr.E.D.N.C.2007) , In re Westfall, 365 B.R. 755 (Bankr.N.D.Ohio 2007), In re Bray, 365 B.R. 850 (Bankr.W.D.Tenn.2007), and In re Acaya, 369 B.R. 564 (Bankr.N.D.Cal.2007), interpret negative equity transactions and the effect of the hanging paragraph. Peaslee, Price, West-fall, Bray, and" }, { "docid": "4018432", "title": "", "text": "finance charges, interest, freight charges, costs of storage in transit, demurrage, administrative charges, expenses of collection and enforcement, attorneys’ fees, and other similar obligations. The concept of “purchase-money security interest” requires a close nexus between the acquisition of the collateral and the secured obligation. (Emphasis added.) Cal. U. Com.Code § 9103, com. 3. However, the comment does not specify whether the negative equity in a trade-in is included in these terms. WFFA asserts that because § 2981(e) of the California Automobile Sales Finance Act (ASFA) defines “cash price” to include the negative equity in a trade-in vehicle, the term “price” as used in California UCC § 9103(a)(2) similarly includes negative equity. ASFA § 2981(e) provides: As used on this chapter, unless the context otherwise requires: (e) “Cash price” means the amount for which the seller would sell and transfer to the buyer unqualified title to the motor vehicle described in the conditional sale contract, if the property were sold for cash at the seller’s place of business on the date the contract is executed, and shall include taxes to the extent imposed on the cash sale and the cash price of accessories or services related to the sale, including, but not limited to, delivery, installation, alterations, modifications, improvements, document preparation fees, a service contract, a vehicle contract cancellation option agreement, and payment of a prior credit or lease balance remaining on property being traded in. Cal. Civ.Code § 2981(e)(emphasis added). WFFA relies on In re Graupner; a case with similar facts that was decided under Georgia law. In that case, the bankruptcy court read the Georgia UCC definition of purchase money obligation in pari materia with the provisions of the Georgia Motor Vehicle Sales Finance Act, which, like ASFA § 2981(e), includes in the cash sale price any amount paid on a trade-in vehicle. In re Graupner, 356 B.R. 907, 922-23 (Bkrtcy.M.D.Ga.2006). Notably, § 9201(b) of the California UCC provides that a transaction subject to division 9 is also subject to the provisions of the ASFA, stating: (b) A transaction subject to this division [9 of the California Uniform Commercial" }, { "docid": "7204720", "title": "", "text": "hanging paragraph. (2) Dual Status In a second line of cases, courts have held that a claim that includes financing for negative equity has a “dual status,” characterized as partially purchase money and partially non-purchase money. See Citifinancial Auto v. Hernandez-Simpson, 369 B.R. 36 (D.Kan.2007); In re Westfall, 376 B.R. 210 (Bankr.N.D.Ohio 2007); In re Pajot, 371 B.R. 139 (Bankr.E.D.Va.2007); In re Acaya, 369 B.R. 564 (Bankr.N.D.Cal.2007). In contrast to the cases in which courts have allowed full 910 claim status to claims that include negative equity financing, “dual status” courts have held that the payment of negative equity is not part of the purchase price or value given to enable the purchase and, therefore, cannot be secured by a purchase money security interest. In re Pajot, 371 B.R. at 154. (3) Transformation of the Claim to Non-purchase Money Lastly, in the case of In re Price, 363 B.R. 734 (Bankr.E.D.N.C.2007) the bankruptcy court found, as in the dual status cases, that the funds advanced to pay off negative equity did not give rise to a purchase money security interest because the funds were not part of the purchase price or value given to enable the purchase. In re Price, 363 B.R. at 741. Nevertheless, after concluding that the negative equity portion of the claim did not constitute a purchase money security interest, the court applied the transformation rule, which provides that a non-purchase money component of a claim transforms an entire claim into a non-purchase money security interest. Id. at 745; N.C. Gen.Stat. § 25-9 — 103 (e) — (g). The court held that pursuant to the transformation rule, the creditor did not have a purchase money security interest in debtors’ vehicle in any amount because the claim included funds advanced to payoff negative equity. In re Price, 363 B.R. at 741. See also In re Blakeslee, 377 B.R. 724, 730-31 (Bankr.M.D.Fla.2007) (holding that pursuant to the application of the transformation rule, the inclusion of negative equity in the purchase of a vehicle transforms the entire claim into non-purchase money). As a result, the hanging paragraph did not apply" }, { "docid": "15973407", "title": "", "text": "to law governing the parties’ contract, California Commercial Code § 9103); In re Pajot, 371 B.R. 139 (Bankr.E.D.Va.2007) (Virginia); In re Petrocci 370 B.R. 489 (Bankr.N.D.N.Y.2007) (New York); In re Price, 363 B.R. 734 (Bankr.E.D.N.C.2007) (North Carolina); In re Bray, 365 B.R. 850 (Bankr. W.D.Tenn.2007) (Tennessee). The absence of a clear state law definition of purchase money security interest and conflicting state law definitions have resulted in disparate treatment of creditors’ claims. In some cases, courts found that the negative equity was part of the purchase money security interest and therefore creditors were entitled to the benefits of the hanging paragraph. See, e.g., General Motors Acceptance Corp. v. Peaslee, 373 B.R. 252 (W.D.N.Y.2007) (reporter citation not yet available); Graupner, 2007 WL 1858291; Cohrs, 373 B.R. 107; Petrocci, 370 B.R. 489. In others, courts determined that the payment of the negative equity on an existing loan is not value given to enable the purchase of the new vehicle and concluded that creditors do not have a purchase money security interest to the extent of the loan amount. See, e.g., Citifinancial Auto, 369 B.R. 36; Pajot, 371 B.R. 139; Price, 363 B.R. 734; In re Acaya, 369 B.R. 564 (Bankr.N.D.Cal. 2007); In re Bray, 365 B.R. 850; In re Vega, 344 B.R. 616, 622 (Bankr.D.Kan. 2006). The latter decisions lead to an inquiry on how to treat partial purchase money security interests, which causes further divergences in the treatment of creditors’ claims. See, e.g., Citifinancial Auto, 369 B.R. 36 (adopting the dual-status rule); Pajot, 371 B.R. 139 (finding that adoption of the dual status rule preserves legislative intent); Price, 363 B.R. 734 (adopting transformation rule because of difficult in tracing payments between the PMSI and non-PMSI portions of the loan); Bray, 365 B.R. 850 (relying on case law to determine that creditor did not have a purchase money security interest in the vehicle because there was no method to determine how the payments had been applied under a dual-status approach); Vega, 344 B.R. 616, 622 (dual status). The maddeningly inconsistent body of decisions impels the conclusion that a consistent rule of law" }, { "docid": "2370598", "title": "", "text": "incurred “for value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used,” for purposes of O.R.S. § 79.0103(l)(b), financed negative equity is not a purchase money obligation. D. Applicability of the Hanging Paragraph Having determined that the financed negative equity portion of Daimler-Chrysler’s Claim is not covered by a PMSI, I now must decide what effect that determination has on treatment of the Claim under the Plan. Most courts concluding that financed negative equity is not a purchase money obligation then apply one or the other of two interpretive rules, developed under state UCC law, for dealing with the secured creditor’s PMSI: the “transformation rule” or the “dual status rule.” “The ‘transformation rule’ provides that when a transaction contains both purchase money and non-purchase money obligations, the entire transaction is transformed into a non-purchase money obligation.” In re Burt, 378 B.R. 352, 359 n. 34 (Bankr.D.Utah 2007). The dual status rule “allows a security interest to have both the status of a PMSI, to the extent that it is secured by collateral purchased with loan proceeds, and the status of a general security interest, to the extent that the collateral secures obligations unrelated to the purchase.” In re Petrocci, 370 B.R. at 504. Those courts which have applied the transformation rule generally hold that the Hanging Paragraph does not afford any protection against cramdown of the secured creditor’s claim. See In re Blakeslee, 377 B.R. at 728-29 (court is unwilling to “unwind the manipulations” applying the dual status rule would require of it); In re Price, 363 B.R. at 746 (“[Gjenerally when negative equity is involved, the appropriate rule is the transformation rule”). Those courts which have applied the dual status rule have allowed protection against cramdown under the Hanging Paragraph only for the portion of the secured creditor’s claim that is a purchase money obligation. See Hernandez-Simpson, 369 B.R. at 46 (under Kansas law, dual status rule applies even to consumer transactions); In re Lavigne, 2007 WL 3469454 at *1 n. 1 (adopting dual status" }, { "docid": "4018440", "title": "", "text": "from the traditional understanding of a purchase money security interest. As other courts have noted, rolling up negative equity into a new loan does not “enable” most vehicle purchases. In re Westfall, 365 B.R. 755 (Bankr. N.D.Ohio2007); In re Price, 363 B.R. 734 (Bankr.E.D.N.C.2007); In re Peaslee, 358 B.R. 545 (Bankr.W.D.N.Y.2006). I conclude that the amount used to pay the negative equity does not constitute part of the price of the collateral or value given to acquire rights in the collateral as contemplated in California UCC § 9103(a)(2). Because financing the negative equity in a trade-in vehicle does not give rise to a purchase money security interest, the hanging paragraph does not apply to this portion of WFFA’s secured claim. Once a transaction is determined to be partially purchase money and partially nonpurchase money, California UCC § 9103(h) leaves to the court’s discretion whether to apply the dual status rule or the transformation rule to the treatment of the secured claim. Although the Ninth Circuit in Matthews adopted a position equivalent to the transformation rule, the facts in Matthews provided no basis for adoption of the dual status rule. Under the dual status rule, adopted in Pristas, a security interest is a purchase money security interest only to the extent it secures the purchase price of the collateral, even if it secures other items. The inclusion of a nonpurchase money component does not destroy the purchase money character. The rationale is derived from former § 9-107 of the UCC, which provided that a security interest is a purchase money security interest “to the extent” it is taken or retained to secure all or part of its price. Pristas, 742 F.2d at 800-01. It supports a policy of encouraging refinancing under circumstances where the creditor has the burden of demonstrating the extent to which a security interest retains its purchase money character, benefitting both buyer and seller by facilitating the sale of consumer goods. Borg-Warner Acceptance Corp. v. Tascosa Nat’l Bank, 784 S.W.2d 129, 135 (Tex.App.1990). Under the transformation rule, recognized in Southtrust Bank of Alabama Nat’l Ass’n v. Borg-Warner Acceptance" }, { "docid": "7204728", "title": "", "text": "An “enabling clause” is “[t]he part of a statute or constitution that gives governmental officials the power and authority to put the law into effect and enforce it.” Id. The Debtor’s trade-in of the 2004 Chevrolet Colorado was certainly not required in order for the Debtor to purchase the Vehicle, nor did it give the Debtor the power or authority to do so. Allowing the Debtor to rollover negative equity into the new loan was simply an accommodation. It was an arrangement made as a favor to another. While paying off the preexisting debt on the old vehicle was value, it was not value given to enable the Debtor to acquire rights in the collateral. Because the funds used to pay negative equity is not a component of the price of the collateral or value given to enable the debtor to acquire rights in the collateral, the court concludes that those funds are not secured by a purchase money security interest. Having determined that BB & T does not have a purchase money security interest for the full amount of its claim, it is within the court’s discretion to apply either the dual status or transformation rule. N.C. Gen.Stat. § 25—9—103(e)—(g); In re Price, 363 B.R. at 745. But see In re Sanders, 377 B.R. 836 (Bankr.W.D.Tex. 2007) (holding that, because financing used to payoff negative equity is not a purchase money obligation, the hanging paragraph does not apply and the claim is subject to treatment pursuant to § 506(a)). This court agrees with Pajot that the dual status rule is a compromise between the two extremes of either “rendering the hanging paragraph almost meaningless through the transformation rule or equipping the hanging paragraph with power beyond its intent by finding negative equity included in the definition of purchase-money security interest.” In re Pajot, 371 B.R. at 160. Moreover, since Congress, by enacting the hanging paragraph, attempted to ensure that debtors could not load up on vehicle-secured debt prepetition only to cram it down, applying the transformation rule would “re-enable debtors to cram down the secured claim to the collateral" }, { "docid": "4018442", "title": "", "text": "Corp., 760 F.2d 1240, 1242-43 (11th Cir. 1985), the inclusion of a nonpurchase money component transforms the entire claim and destroys the purchase money character. There is no longer a “pure” purchase money security interest. Pristas, 142 F.2d at 800. The policy underlying the trans formation rule as applied in consumer goods cases is to prevent overreaching creditors from retaining title to all items covered under a consolidation contract until the last item purchased is paid for. Borg-Warner Acceptance Corp. v. Tascosa Nat’l Bank, 784 S.W.2d at 134-35. In the context of the hanging paragraph, courts that have rejected the dual status rule and applied the transformation rule have found that the circumstances of the loan documentation made it impossible to allocate the secured claim between the negative equity and the purchase money obligation. See Price, 363 B.R. 734; Peaslee, 358 B.R. 545. In this case, however, the ASFA imposes such stringent requirements upon California automobile dealers for disclosure and itemization of costs that the portion of the secured debt attributable to the purchase price of the vehicle is easily traceable. In light of the traceability, I adopt the dual status rule for determination of the treatment of WFFA’s claim. I reserve the issue of allocation of payments pending further briefing. Conclusion The consumer protection purposes of ASFA suggest that ASFA’s definition of “cash price” should not be incorporated into the California UCC for purposes of determining a purchase money security interest. Consequently, WFFA’s purchase money security interest does not include amounts used to pay the negative equity in a trade-in vehicle. Instead, the dual status rule provides an appropriate tool in determining the extent of WFFA’s purchase money security interest. For these reasons, the objection of WFFA to confirmation of the debtor’s plan is sustained. Aca-ya may file an amended plan consistent with this decision. Good cause appearing, IT IS SO ORDERED." }, { "docid": "21273802", "title": "", "text": "trade-in vehicle to be reimbursed by the purchaser, and financed as part of the principal balance). There is no doubt that this is a cost incurred by the dealership, without which the transaction could not have occurred. However, it is not a cost contemplated by the UCC as one that is part of the purchase money obligation. See Tex. Bus. & Comm.Code § 9.103, Comment 3. The funds used to pay off the negative equity in the vehicle traded-in are neither part of the price of the collateral, nor are they value given by FMC that was actually used to enable the debtors to acquire rights in the collateral. These funds merely enabled the dealership to pay off the balance on the trade-in using the debtors’ credit. As a result, that part of the loan attributable to the negative equity from the debtors’ old vehicle is not part of the purchase money obligation as defined by section 9.103(a)(2) of the Texas Business and Commercial Code. How Does a Creditor Qualify for Protection Under § 1325(a)(*)? Now that we know that the “negative equity” portion of FMC’s loan to the debtors is not part of FMC’s purchase money security interest (ie., it is secured, but the security interest is not a PMSI within the meaning of section 9.103 of the UCC), we next need to determine how or whether FMC’s claim fits within the 910-day exception to the general rule that secured claims can be bifurcated in a chapter 13 plan. It is at this point that many courts begin to discuss whether a transformation rule or a dual status rule should apply to the creditor’s purchase money security interest. See, e.g., In re Westfall, 2007 WL 2777709 at *8 (supplementing its previous order, holding that the transformation rule is “too severe,” and allowing the debtor to treat only the non-purchase money portion of the creditor’s claim attributable to the payment of negative equity as an unsecured claim); Citifinancial Auto v. Hernandez-Simpson (In re Hernandez-Simpson), 369 B.R. 36 (D.Kan.2007) (holding that the dual status rule applies because the Kansas enactment of" }, { "docid": "4018439", "title": "", "text": "“itemization of amount financed.” Analysis of Sen. Bill No. 1092, Assembly Comm, on Judiciary (1999-2000 Reg. Sess.). The amendment conforms to federal Regulation Z, which authorizes the financing of prior credit balances on trade-in vehicles so long as the amount financed is clearly and separately itemized, and is consistent with the ASFA’s remedial purpose of protecting consumers from inaccurate and unfair credit practices through full and honest disclosures. Thompson v. 10,000 RV Sales, 130 Cal.App.4th at 977-78, 31 Cal.Rptr.3d 18. The legislative history of the ASFA makes plain that the ASFA is a consumer protection statute that imposes disclosure requirements on dealers and is not helpful in determining what constitutes a purchase money security interest under the California UCC. Importantly, the prefatory statement to ASFA § 2981(e) qualifies the application of the definition of “cash price” by providing “unless the context otherwise requires,” a qualification that invites consideration of the context. There is no indication in the statute or the legislative history that the 1999 amendment to “cash price” was intended to effect a departure from the traditional understanding of a purchase money security interest. As other courts have noted, rolling up negative equity into a new loan does not “enable” most vehicle purchases. In re Westfall, 365 B.R. 755 (Bankr. N.D.Ohio2007); In re Price, 363 B.R. 734 (Bankr.E.D.N.C.2007); In re Peaslee, 358 B.R. 545 (Bankr.W.D.N.Y.2006). I conclude that the amount used to pay the negative equity does not constitute part of the price of the collateral or value given to acquire rights in the collateral as contemplated in California UCC § 9103(a)(2). Because financing the negative equity in a trade-in vehicle does not give rise to a purchase money security interest, the hanging paragraph does not apply to this portion of WFFA’s secured claim. Once a transaction is determined to be partially purchase money and partially nonpurchase money, California UCC § 9103(h) leaves to the court’s discretion whether to apply the dual status rule or the transformation rule to the treatment of the secured claim. Although the Ninth Circuit in Matthews adopted a position equivalent to the transformation rule," }, { "docid": "4018438", "title": "", "text": "any deferred down payment, the amount of any rebate, the remaining amount to be paid as a downpayment, and the total downpayment; and (2) a separate itemization of any prior credit of lease balance that is being financed in the new transaction.... Apparently, it was a common practice for automobile dealers to disclose a negative number on the “downpayment” fine in circumstances involving a negative equity trade in, and then to increase the “total amount financed” of the newly financed vehicle by a like sum. However, ... this practice confused consumers, who, when looking over the itemization sheet, believed that a negative number on the downpayment line should reduce the total amount financed rather than increase it. Under the revised staff commentary to Regulation Z, a zero, not a negative number, is now required to appear on the “downpayment” line, unless there is also a cash payment involved. In addition, any prior credit or lease balance remaining in the property being traded-in is now required to be separately fisted as a positive figure in the “itemization of amount financed.” Analysis of Sen. Bill No. 1092, Assembly Comm, on Judiciary (1999-2000 Reg. Sess.). The amendment conforms to federal Regulation Z, which authorizes the financing of prior credit balances on trade-in vehicles so long as the amount financed is clearly and separately itemized, and is consistent with the ASFA’s remedial purpose of protecting consumers from inaccurate and unfair credit practices through full and honest disclosures. Thompson v. 10,000 RV Sales, 130 Cal.App.4th at 977-78, 31 Cal.Rptr.3d 18. The legislative history of the ASFA makes plain that the ASFA is a consumer protection statute that imposes disclosure requirements on dealers and is not helpful in determining what constitutes a purchase money security interest under the California UCC. Importantly, the prefatory statement to ASFA § 2981(e) qualifies the application of the definition of “cash price” by providing “unless the context otherwise requires,” a qualification that invites consideration of the context. There is no indication in the statute or the legislative history that the 1999 amendment to “cash price” was intended to effect a departure" }, { "docid": "15973406", "title": "", "text": "U.S.C. § 1409. The following constitutes the court’s findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052. FACTS The facts were adequately set forth in the court’s previous entry. DISCUSSION The issue before the court is whether state or federal law should define the term purchase money security interest as it is used in 11 U.S.C. § 1325(a). To date, the decisions on this issue have drawn from individual state law, specifically the state statutes adopting Revised Chapter 9 of the Uniform Commercial Code (hereafter “UCC”). See, e.g., Citifinancial Auto v. Hernandez-Simpson, 369 B.R. 36, 45 (D.Kan.2007) (stating that “[t]he law of the State of Kansas is applicable here, as the transaction occurred in Kansas”); Graupner v. Nuvell Credit Corp., 2007 WL 1858291 (M.D.Ga.2007) (reporter citation not yet available) (utilizing Georgia law, but also relying on definitions contained in the federal Truth in Lending Act and Georgia Motor Vehicle Sales Finance Act); In re Cohrs, 373 B.R. 107 (Bankr.E.D.Cal.2007) (reporter citation not yet available) (finding that, “logically,” must look to law governing the parties’ contract, California Commercial Code § 9103); In re Pajot, 371 B.R. 139 (Bankr.E.D.Va.2007) (Virginia); In re Petrocci 370 B.R. 489 (Bankr.N.D.N.Y.2007) (New York); In re Price, 363 B.R. 734 (Bankr.E.D.N.C.2007) (North Carolina); In re Bray, 365 B.R. 850 (Bankr. W.D.Tenn.2007) (Tennessee). The absence of a clear state law definition of purchase money security interest and conflicting state law definitions have resulted in disparate treatment of creditors’ claims. In some cases, courts found that the negative equity was part of the purchase money security interest and therefore creditors were entitled to the benefits of the hanging paragraph. See, e.g., General Motors Acceptance Corp. v. Peaslee, 373 B.R. 252 (W.D.N.Y.2007) (reporter citation not yet available); Graupner, 2007 WL 1858291; Cohrs, 373 B.R. 107; Petrocci, 370 B.R. 489. In others, courts determined that the payment of the negative equity on an existing loan is not value given to enable the purchase of the new vehicle and concluded that creditors do not have a purchase money security interest to the extent of the loan" }, { "docid": "15262839", "title": "", "text": "of the purchase money obligation are \"obligations for expenses incurred in connection with acquiring rights in the collateral, sales taxes, duties, finance charges, interest, freight charges, costs of storage in transit, demurrage, administrative charges, expenses of collection and enforcement, attorney's fees, and other similar obligations.” Tenn.Code Ann. Uniform Commercial Code Comment 3. Clearly, the expenses the drafters had in mind were essentially transaction costs; not every expense that makes a transaction possible should be considered an enabling expense. See In re Westfall, 365 B.R., at 762 (asking, sarcastically, whether payment of a doctor's fee would cover an enabling expense if a debtor would not have made it to the dealer’s lot without an emergency appendectomy). . In Bray, the court noted in a footnote that it did not need to decide the negative equity issue in the case. However, other cases have cited Bray favorably. Judge Lundin’s Hayes decision lists cases agreeing that a loan to pay off “negative equity” is not included in a PMSI in a new car for purposes of the hanging paragraph: See In re Westfall, 376 B.R. 210 (Bankr. N.D.Ohio 2007) (Negative equity financed as part of car purchase is not a purchase money obligation.); In re Cohrs, 373 B.R. 107 (Bankr.E.D.Cal.2007) (Payoff of prior car is part of a purchase money transaction when debtor actually traded-in existing vehicle; different outcome likely when facts show that debtor did not trade-in existing vehicle.); In re Pajot, 371 B.R. 139 (Bankr.E.D.Va.2007) (Portion of transaction corresponding to negative equity is not considered a purchase money security interest under Virginia law.); In, re Acaya, 369 B.R. 564 (Bankr.N.D.Cal.2007) (Amount used to pay negative equity does not constitute part of the price of the collateral or value given to acquire rights in the collateral.); Citifinancial Auto v. Hernandez-Simpson (In re Hernandez-Simpson), 369 B.R. 36 (D.Kan.2007) (Negative equity financed as part of car purchase is not included in resulting PMSI.); In re Price, 363 B.R. 734 (Bankr.E.D.N.C.2007) (Applying North Carolina law, funds advanced to pay off negative equity on trade-in are not part of purchase money security interest.); In re Grant," }, { "docid": "21256183", "title": "", "text": "“price of the collateral”, would be improper given that the statute is a consumer protection statute which imposes disclosure requirements on automobile dealers and is not helpful in determining what constitutes a purchase money security interest under the Florida U.C.C. See Pajot, 371 B.R. at 149, 2007 WL 2109892 at * 6 (rejecting application of other state statutes to define “price” because none were enacted with purpose of defining purchase-money obligation under U.C.C.); In re Acaya, 369 B.R. 564, 570 (Bankr.N.D.Cal.2007) (rejecting application of California Automobile Sales Finance Act, a consumer protection statute imposing disclosure requirements on dealers, because it was not helpful in determining what constitutes a purchase money security interest under U.C.C.); In re Peaslee, 358 B.R. at 556 (rejecting “cash sale price” or any other price defined or referred to in other state or federal statutes because they were not enacted to define or expand upon U.C.C.’s definition of purchase money security interest.) The Court concludes that financed negative equity is not part of the “price of the collateral” as set forth in Fla. Stat. § 679.1031. The Court also finds that negative equity is not used to enable a debtor to acquire rights in the collateral. Even if a creditor is unwilling to loan money on the purchase of a new vehicle without the payoff of an existing loan, the payoff of negative equity by the creditor is not a prerequisite to enable the debtor to obtain a legal interest in the vehicle’s payoff, but merely an accommodation to facilitate the transaction. In re Westfall, 365 B.R. 755, 760 (Bankr.N.D.Ohio 2007). The Court finds that the legislature’s failure to include negative equity in the text of the U.C.C. or in the official comments thereto despite the increasingly common financing of negative equity is not an oversight and does not provide justification for the Court to “placet ] it amongst a list which would be the proverbial elephant in the room.” Id. Additionally, the Court does not find the requisite close nexus between the payoff of negative equity and the acquisition of the new vehicle. The Court" } ]

[ { "docid": "22325607", "title": "", "text": "money or for an injunction compelling or restraining action by the defendant, both a state court and a federal court having concurrent jurisdiction may proceed with the litigation, at least until judgment is obtained in one court which may be set up as res adjudicata in the other. See Buck v. Colbath, supra, 342; Kline v. Burke Construction Co., 260 U. S. 226, and cases cited at pages 230-231. But if the two suits are in rem or quasi in rem, requiring that the court or its officer have possession or control of the property which is the subject of the suit in order to proceed with the cause and to grant the relief sought, the jurisdiction of one court must of necessity yield to that of the other. To avoid unseemly and disastrous conflicts in the administration of our dual judicial system, see Peck v. Jenness, 7 How. 612, 625; Taylor v. Carryl, 20 How. 583, 595; Freeman v. Howe, 24 How. 450, 459; Buck v. Colbath, supra, 341; Farmers’ Loan & Trust Co. v. Lake Street Elevated R. Co., supra, 61, and to protect the judicial processes of the court first assuming jurisdiction, Wabash R. Co. v. Adelbert College, supra, 54; Palmer v. Texas, 212 U. S. 118, 129, 130, the principle, applicable to both federal and state courts, is established that the court first assuming jurisdiction over the property may maintain and exercise that jurisdiction to the exclusion of the other. This is the settled hule with respect to suits in equity for the control by receivership of the assets of an insolvent corporation. Leadville Coal Co. v. McCreery, 141 U. S. 475, 477; Porter v. Sabin, 149 U. S. 473, 480; Farmers’ Loan & Trust Co. v. Lake Street Elevated R. Co., supra; Wabash R. Co. v. Adelbert College, supra; Palmer v. Texas, supra; Lion Bonding & Surety Co. v. Karatz, 262 U. S. 77, 88, 89; Harkin v. Brundage, 276 U. S. 36. Where the assertion, of jurisdiction by the two courts is nearly simultaneous, it becomes important, as in the present case, to determine" } ]

[ { "docid": "15788711", "title": "", "text": "L.Ed. 209. The decision in United States v. Bank of New York & Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331, upon which appellant strongly relies does not run counter to the views which we have expressed, because there, the Government had filed suit in the Federal court to assert its claim to a fund in the possession of “stakeholders” or “depositaries” of the State court, and the Supreme Court, in affirming the dismissal of the Government’s suit, simply held, in effect, that the United States Should proceed by intervention in the State court action to distribute the fund since “the United States would be an actor — voluntarily asserting what it deemed to be its rights — and not a defendant.” 296 U.S. 463, 480, 56 S.Ct. 343, 348. The rule as to in rem actions which appellant invokes is predicated upon principles of comity between State and Federal courts of concurrent jurisdiction, and it has no application here because the District Court, wherein the United States is plaintiff, has -exclusive jurisdiction to determine the title of the United States to the minerals and mineral rights claimed by the appellant. In the light of the foregoing, we hold that the District Judge, under the applicable statute, 28 U.S.C. § 2283, was right in concluding that a preliminary injunction should issue to preserve the status quo in order to prevent irreparable injury, and we adopt and quote with approval the following from his published opinion: “ * * * should the state court proceeding come to final judgment dispossessing the mineral lessees of the United States before the litigation in the federal courts is terminated, inestimable and irreparable damage will result to the United States from the interruption in the operations of its lessees on the premises, in the event the United States is ultimately-declared the owner of the property in suit. This contingency can be avoided only by an abatement of the state court action.” See United States v. McIntosh, D.C., 57 F.2d 573, 580. The order appealed from is Affirmed. . 28 U.S.C. § 1292(1)." }, { "docid": "5532228", "title": "", "text": "case in Pacific Indemnity Company v. Acel Delivery Service, Inc., 5 Cir., 1970, 432 F.2d 952, 954, as follows: The language of § 2283 is explicit in defining the circumstances in which a federal court may stay proceedings in a state court; however, certain timeworn judicially declared exceptions do exist. Thus, it is said that where the jurisdiction over the proceedings is in rem or quasi in rem, “[T]he state or federal court having custody of such property has exclusive jurisdiction to proceed.” Donovan v. City of Dallas, 377 U.S. 408, 412, 84 S.Ct. 1579, 1582, 12 L.Ed.2d 409 (1964). See also Jett v. Zink, 5 Cir., 1973, 474 F.2d 149, 151, where identical issues, concerning the validity of an agreement to define the parties’ interests in an oil field, were pending in both a state and federal court in Alabama. We declined to enjoin the state court suit because the federal court’s jurisdiction in that case was in personam, but we said, however, that it would be “inconceivable” to allow the same issues to be pending simultaneously in state and federal courts if the federal court had exclusive jurisdiction of the res. 474 F.2d at 155. I would adhere to the rules of law enunciated previously by the Supreme Court and our recent Fifth Circuit cases, and affirm the district court decision. . See also Lion Bonding & Surety Co. v. Karatz, 262 U.S. 77, 89, 43 S.Ct. 480, 484, 67 L.Ed. 871 (1923): “The court which first acquired jurisdiction through possession of the property is vested, while it holds possession, with the power to hear and determine ail controversies relat-ting thereto. It has the right, while continuing to exercise its prior jurisdiction, to determine for itself how far it will permit any other court to interfere with such possession and jurisdiction.” The majority opinion relies on United States v. Klein, 303 U.S. 276, 281, 58 S.Ct. 536, 538, 82 L.Ed. 840 (1938), for the proposition that a court may properly adjudicate rights in property in the possession of another court and may render any judgment “not in conflict" }, { "docid": "12701051", "title": "", "text": "foreclosure action and its motion therein for summary judgment, should not issue pursuant to Rule 65 of the Federal Rules of Civil Procedure. The application for a preliminary injunction was granted on October 5, 1965 and Certified appeals from that order. 28 U.S.C. § 1292(a)(1). The appeal raises a difficult question with regard to federal-state relations. We begin with the premise that the anti-injunction statute, 28 U.S.C. § 2283, which prohibits a federal court from granting “an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments,” does not apply where the United States, as a party in interest, seeks such a stay. Leiter Minerals, Inc. v. United States, 352 U.S. 220, 226, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957). That decision does not mean, however, that a stay is automatically granted simply on the application of the United States. After enunciating the principle above stated, the Supreme Court went on to say that it was also necessary to inquire “whether the granting of an injunction was proper in the circumstances of this case.” Leiter Minerals, Inc. v. United States, supra, at 226, 77 S.Ct. at 291. The United States is not entitled to an injunction staying state court proceedings where the state court is the first court to assume jurisdiction over the subject matter property of an action in rem or quasi in rem. United States v. Bank of New York & Trust Co., 296 U.S. 463, 477, 56 S.Ct. 343, 80 L.Ed. 331 (1936); Penn General Casualty Co. v. Com. of Pennsylvania, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935). On the other hand, the mere fact that certain property in possession or custody of the state court is indirectly related to the action in the federal court is not a bar to the exercise of federal jurisdiction “where the final judgment does not undertake to interfere with the state court’s possession save to the extent that the state court is bound by the" }, { "docid": "15577838", "title": "", "text": "effect to its jurisdiction, the court must control the property. Id. at 466, 59 S.Ct. at 280 (footnote and citations omitted). Our future reference to the Princess Lida doctrine will embrace only the quoted language of the opinion. The quoted principle of Princess Lida was well established in prior Supreme Court precedents. See United States v. Bank of N.Y. & Trust Co., 296 U.S. 463, 477-78, 56 S.Ct. 343, 347-48, 80 L.Ed. 331 (1936); Penn Gen. Casualty Co. v. Pennsylvania, 294 U.S. 189, 195, 55 S.Ct. 386, 389, 79 L.Ed. 850 (1935). Its continuing validity is undisputed. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 818, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) (citing Princess Lida, among other cases, and stating that “[a] court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts”); Chesley v. Union Carbide Corp., 927 F.2d 60, 66 (2d Cir.1991) (stating, in an in rem context, that the rule of Princess Lida is “equally applicable to requested interference by American courts with a res under the jurisdiction of a foreign court”). The district court recognized that “the instant actions do involve the administration of a trust” but then went on to conclude that “every suit that involves the administration of a trust fund does not invoke the Princess Lida doctrine” and that the doctrine was inapplicable in this case. Dailey v. National Hockey League, 780 F.Supp. 262, 267 (D.N.J.1991). This conclusion was based, in part, on the court’s determination that the suit brought in Princess Lida required “far more comprehensive control by the court over the administration of the trust than is sought in the cases at issue here.” Id. In finding Princess Lida inapplicable, the district court concluded that the two actions, to the extent they sought money damages from third parties, specifically the member clubs and Manulife, were in personam actions. Id. at 267-68. The district court, applying what it termed a “pragmatic” approach, concluded that, despite the fact that injunc-tive relief is sought in both suits, there was no danger of conflicting" }, { "docid": "11963648", "title": "", "text": "Elder demand for the proceeds of the oil. The plea, as well as a motion to stay this suit, were overruled and judgment went for Elder and his grantees for the sum demanded by them. Byrd-Frost urges here, as it did below, that it is subjected to the hazard of being twice cast for the same debt in that it is now adjudged to be liable to Flder, and may hereafter be adjudged liable to Miller for the same monies. It asserts that the Miller suit, in which the state . court ’ injunction is pending, is in rem or quasi in rem, since it seeks to establish title to the minerals under the land, and to recover the proceeds' thereof now .held by Byrd-Frost in a separate fund. It asserts that the suit at bar is also in rem or quasi in rem, because it is brought to recover a specific fund in the hands of Byrd-Frost, being the same fund sought by Miller in his suit, over which the state court had assumed jurisdiction before this suit was instituted. This jurisdiction, appellant contends, being prior in time is exclusive, upon the familiar principle that in actions in rem or quasi in rem, where the jurisdiction of a state court has first attached, a federal court of concurrent jurisdiction . is precluded from exercising its jurisdiction over the same res to defeat or impair the state court’s jurisdiction, control of the res being essential to the full exercise of jurisdiction. Insisting that the court below should have yielded' to the asserted prior jurisdiction of the Texas state court in the Miller suit, appellant relies upon United States v. Bank of New York & Trust Company, 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331; Penn Casualty Co. v. Pennsylvania, 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed. 850; Lion Bonding Co. v. Karatz, 262 U.S. 77, 43 S.Ct. 80, 67 L.Ed. 871; Harkin v. Brundage, 276 U.S. 36, 48 S.Ct. 268, 72 L.Ed. 457; Farmers’ Trust Co. v. Lake St. Elevator R. Co., 177 U.S. 51, 20 S.Ct. 564," }, { "docid": "5692256", "title": "", "text": "then commenced an in rem action in the appropriate State court. As a result, they argue, the State court not only assumed control over the res, but also acquired exclusive jurisdiction to hear the matter free from interference by other fora. Second, they claim that since this is merely a forfeiture proceeding against a specific res, no relief in personam, no imposition of civil or criminal liability, is sought against the District Director. Hence, petitioners maintain that the action is not a removable civil or criminal proceeding brought “against” the Director within the meaning of Section 1442(a) (1). Finally, petitioners stress the penal aspect of the State forfeiture proceeding designed to aid enforcement of its criminal laws. This Court is urged, as a matter of deference to New Jersey’s sovereign police power, not to preempt or interfere with the administration of its criminal law and the policies embodied therein. III. Petitioner’s threshold point, while potentially diversionary, may be disposed of briefly. It is true that when two or more courts assert conflicting jurisdiction over property, the well-established rule is that the court first acquiring control of the res has exclusive jurisdiction to hear the matter; the other courts will abate, or at least defer, their proceedings pending the outcome of the first one. United States v. Bank of New York and Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331 (1936). Such exclusivity is especially important when problems of federalism are raised by conflict between’ a federal and a state jurisdiction. Ibid. The doctrine of prior exclusive jurisdiction is inapplicable here, since there is but a single suit, not two separate in rem actions. The rule’s purpose is to avoid awkward confrontation between two courts, each trying to dispose of the res pursuant to its own judgment. Thus, where only the first suit is in rem, and the second court can hear personal claims to debts or rights to share in the property without disturbing the first court’s jurisdiction over the res, both actions may proceed. Kline v. Burke Construction Co., 260 U.S. 226, 232, 43 S.Ct. 79," }, { "docid": "773310", "title": "", "text": "Merrill Lynch clients will be placed. However, the cases which hold that the court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts are cases in which a court has acted in rem or quasi in rem to secure jurisdiction. See, e.g., Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964); Princess Lida v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285 (1939); United States v. Bank of New York Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331 (1936). The action brought by Merrill Lynch in the Court of Common Pleas is not such an action. Moreover, I do not find that the establishment of the escrow account by Judge Subers creates an analogous instance to cases where one court has initially proceeded in rem or quasi in rem, and a concurrent action is brought in another forum. Roodveldt’s case before me does not require this court to obtain possession of any property that is the subject of the suit in order to fashion appropriate relief. In Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed. 850 (1935), the Court stated, “[wjhere the judgment sought is strictly in personam, ... for an injunction compelling or restraining action by the defendant, both a state court and a federal court having concurrent jurisdiction may proceed with the litigation ...” Id., 294 U.S. at 195, 55 S.Ct. at 389. After considering the other factors discussed by the Court in Moses H. Cone and Colorado River, I am persuaded that it is necessary to exercise jurisdiction over the case brought by Roodveldt. Roodveldt’s complaint states that federal subject matter jurisdiction is premised on diversity of citizenship, but that the action is brought under the Federal Arbitration Act, 9 U.S.C. § 1, et seq. Thus, the source-of-law in the present action is federal law. As the Court stated in Moses H. Cone, the “Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved" }, { "docid": "22001262", "title": "", "text": "or quasi in rem jurisdiction over the same property the doctrine provides that the court first acquiring jurisdiction proceeds without interference from the other. Princess Lida v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285 (1939); United States v. Bank of New York & Trust Co., 296 U.S. 463, 477, 56 S.Ct. 343, 80 L.Ed. 331 (1936), and cited cases. A proceeding in rem is traditionally regarded as one taken against the property itself for the purpose of disposition among contesting claimants. But in this proceeding Robertson is not asserting any right, title or possessory interest in the requested documents. Rather, he seeks only access to and review of them under the Act and injunctive relief to secure those results against the defendants over whom this Court has jurisdiction. This proceeding is not one in rem, and where the judgment sought is in personam and an injunction is requested compelling or restraining action by a defendant, federal courts having concurrent jurisdiction may proceed until a final determination in one court affords the possible defense of res ad judicata. Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935). The Court finds no support for and therefore rejects GM’s argument that exclusive jurisdiction is with the Virginia court. Comity General Motors also contends that the principle of comity requires this Court to abstain from entertaining this action, as to do so would interfere with the jurisdiction of the Virginia courts. Upon analysis, however, this contention should be rejected. As stated in Great Northern Railway Co. v. National Railroad Adjustment Board, 422 F.2d 1187, 1193 (7th Cir. 1970): [T]he comity doctrine ... requires that when two identical actions are filed in courts of concurrent jurisdiction the one which first acquired jurisdiction should be the one to try the lawsuit. The purposes of the rule are to avoid unnecessarily burdening courts and to avoid possible embarrassment from conflicting results. Technically, the concept of comity has no application in cases like the instant one in which the two pending suits involve different parties, different causes" }, { "docid": "15106585", "title": "", "text": "States from the Anti-Injunction Act, abstention is inappropriate when the United States seeks to assert in federal court a superior federal interest. Hence, a brief examination of the Act and the policy it advances is necessary for an evaluation of the position of the United States. The Anti-Injunction Act provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” Whether the Act applies to actions brought by the United States was addressed by the Supreme Court in Leiter Minerals, Inc. v. United States, supra, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267. In Leiter Minerals defendant filed suit in a Louisiana court against mineral lessees of the United States. Defendant sought to have itself declared owner of the mineral rights of the land leased from the United States. The lessees argued in Louisiana court that the United States, as lessor, was an indispensable party, but the court overruled this objection. Joining all interested parties, the United States brought suit to quiet title in federal district court. The United States also sought and obtained an injunction to restrain the Louisiana proceeding. The Fifth Circuit affirmed, as did the Supreme Court. Before the Supreme Court, defendant argued that the Anti-Injunction Act barred the injunction. The Court disagreed, explaining that the Act is designed to prevent conflict between federal and state courts. This policy is much more- compelling when it is the litigation of private parties which threatens to draw the two judicial systems into conflict than when it is the United States which seeks a stay to prevent threatened irreparable injury to a national interest. The frustration of superior federal interests that would ensue from precluding the Federal Government from obtaining a stay of state court proceedings except under the severe restrictions of 28 U.S.C. § 2283 would be . . . great .... Leiter Minerals, Inc. v. United States, supra, 352 U.S. at 225-26, 77 S.Ct. at 290-91. The" }, { "docid": "5692257", "title": "", "text": "the well-established rule is that the court first acquiring control of the res has exclusive jurisdiction to hear the matter; the other courts will abate, or at least defer, their proceedings pending the outcome of the first one. United States v. Bank of New York and Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331 (1936). Such exclusivity is especially important when problems of federalism are raised by conflict between’ a federal and a state jurisdiction. Ibid. The doctrine of prior exclusive jurisdiction is inapplicable here, since there is but a single suit, not two separate in rem actions. The rule’s purpose is to avoid awkward confrontation between two courts, each trying to dispose of the res pursuant to its own judgment. Thus, where only the first suit is in rem, and the second court can hear personal claims to debts or rights to share in the property without disturbing the first court’s jurisdiction over the res, both actions may proceed. Kline v. Burke Construction Co., 260 U.S. 226, 232, 43 S.Ct. 79, 67 L.Ed. 226 (1922). The reason for the rule is also absent in the case of removal. It is not a matter of competing suits; the question is simply whether the action begun in the State court may be removed here. Popovitch v. Kasperlik, 59 F.Supp. 993 (W.D. Pa., 1945). To the extent it may be conceptualized, while the case is here — until and unless it is remanded — there is no proceeding pending in the Superior Court with which my adjudication might conflict. In a word, it is not a matter of who should go first, but merely of who should go, period. IV. Petitioner’s remaining points pertain to the main issue before me: whether this action is within the purview of the removal provision upon which the District Director has relied. The disruption of State jurisdiction caused by removal is a statutory privilege to be construed strictly. The burden is upon the party removing to establish his right to do so. Moreover, removal jurisdiction, when challenged by motion to remand, must be" }, { "docid": "22001261", "title": "", "text": "financial data which, if released, could injure GM’s competitive position and are exempt from disclosure under the fourth exemption. Other portions would be disclosed were it not for the Virginia injunction. These defendants have not taken any position on the two motions presently before the Court — that of GM for summary judgment and Robertson for partial summary judgment. MOTION OF GENERAL MOTORS FOR SUMMARY JUDGMENT A multi-pronged argument is launched by GM to support the summary judgment motion: (1) exclusive jurisdiction; (2) comity; and (3) collateral estoppel. Exclusive Jurisdiction General Motors advances the argument that the Virginia District Court, having first exercised jurisdiction over the question of access to the documents, has sole and complete jurisdiction. Such an argument depends entirely, however, on analogizing the Virginia and District of Columbia proceedings to actions in rem or quasi in rem. In such proceedings the governing principle is that the court having custody and control over the property or res may proceed to grant the appropriate relief. And where two courts attempt to exercise in rem or quasi in rem jurisdiction over the same property the doctrine provides that the court first acquiring jurisdiction proceeds without interference from the other. Princess Lida v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285 (1939); United States v. Bank of New York & Trust Co., 296 U.S. 463, 477, 56 S.Ct. 343, 80 L.Ed. 331 (1936), and cited cases. A proceeding in rem is traditionally regarded as one taken against the property itself for the purpose of disposition among contesting claimants. But in this proceeding Robertson is not asserting any right, title or possessory interest in the requested documents. Rather, he seeks only access to and review of them under the Act and injunctive relief to secure those results against the defendants over whom this Court has jurisdiction. This proceeding is not one in rem, and where the judgment sought is in personam and an injunction is requested compelling or restraining action by a defendant, federal courts having concurrent jurisdiction may proceed until a final determination in one court affords the possible" }, { "docid": "15577837", "title": "", "text": "v. Thompson, 305 U.S. 456, 458-60, 59 S.Ct. 275, 277-78, 83 L.Ed. 285 (1938). The Supreme Court held that the earlier accounting action was quasi in rem and that the district court lacked subject matter jurisdiction. Id. at 465-68, 59 S.Ct. at 280-81. This holding was based on the doctrine which prevents a court in which an action is filed from exercising jurisdiction when a court in a previously filed action is exercising control over the property at issue and the second court must exercise control over the same property in order to grant the relief sought. As the Court said in Princess Lida: We have said that the principle applicable to both federal and state courts that the court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, is not restricted to cases where property has been actually seized ... but applies as well where suits are brought to marshal assets, administer trusts, or liquidate estates, and in suits of a similar nature where, to give effect to its jurisdiction, the court must control the property. Id. at 466, 59 S.Ct. at 280 (footnote and citations omitted). Our future reference to the Princess Lida doctrine will embrace only the quoted language of the opinion. The quoted principle of Princess Lida was well established in prior Supreme Court precedents. See United States v. Bank of N.Y. & Trust Co., 296 U.S. 463, 477-78, 56 S.Ct. 343, 347-48, 80 L.Ed. 331 (1936); Penn Gen. Casualty Co. v. Pennsylvania, 294 U.S. 189, 195, 55 S.Ct. 386, 389, 79 L.Ed. 850 (1935). Its continuing validity is undisputed. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 818, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) (citing Princess Lida, among other cases, and stating that “[a] court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts”); Chesley v. Union Carbide Corp., 927 F.2d 60, 66 (2d Cir.1991) (stating, in an in rem context, that the rule of Princess Lida is “equally applicable to requested interference by American" }, { "docid": "1284670", "title": "", "text": "we have reached, the only questions necessary for decision here are: 1. Whether the District Court committed reversible error in taking jurisdiction of the action in view of the institution of a related action in a State court before the action began in the District Court; and 2. Whether the evidence was sufficient to sustain the finding of the District Court that the deed of June 4, 1948, purporting to convey the real property in dispute was delivered by the grantor to the grantee with the intention to vest title immediately in the grantee. 1. Since the sum in controversy in the action in the United States District Court was in excess 'of $3,000, exclusive of interest and costs, and was between residents of different States, the action was within the jurisdiction of the District Court. The question is whether the District Court was precluded from exercising an admitted jurisdiction. The rule is settled that the court, State or Federal, which first acquires jurisdiction in a proceeding in rem or quasi in rem retains jurisdiction to the exclusion of the other until final adjudication. “The principle, applicable to both federal and state courts, that the court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, is not restricted to cases where property has been actually seized under judicial process before a second suit is instituted. It applies as well where suits are brought to marshal assets, administer trusts, or liquidate estates, and in suits of a similar nature, where, to give effect to its jurisdiction, the court must control the property.” United States v. Bank of New York & Trust Co., 296 U.S. 463, 477, 56 S.Ct. 343, 347, 80 L.Ed. 331; Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256; Mandeville v. Canterbury, 318 U.S. 47, 63 S.Ct. 472, 87 L.Ed. 605; Princess Lida v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285; Penn General Casualty Co. v. Commonwealth of Pennsylvania, 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed. 850; Kline v. Burke Construction Co., 260" }, { "docid": "7102419", "title": "", "text": "S.Ct. 287 at 291. In the suit instituted by the United States in this court, all of the persons interested in the action have been named as parties. This court, as in the Leiter case, is the only court in which a judgment could be rendered that would conclusively determine all rights .to the fund. As stated by the District Court for the Southern District of New York in the United States v. Certified Indus., Inc., 247 F.Supp. 275, 278 (S.D.N.Y.1965), “(T)he United States was not made a party to the state court action. It would, therefore, not be bound on its claim by any judgment therein. Thus, refusing to grant this injunction would not settle the controversy, but would lead instead to further litigation.” The defendant, Implement Company, contends that this case is controlled by the principle set forth in the United States v. Bank of New York & Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331 (1936), that when the state court obtains jurisdiction over the res first, that court should resolve the issues. This case, however, may be distinguished from the Bank of New York case. In the Bank of New York case, the United States was asserting an affirmative claim to funds that neither it nor anyone holding on behalf of the United States ever possessed. In the action in this court, the United States is seeking to protect and defend its rights to certain funds held in trust for the United States, which rights are presently being challenged in a legal proceeding to which it is not and cannot be made a party. In distinguishing the Leiter case from the Bank of New York case, the Supreme Court stated: “Therefore, since the position of the United States is essentially a defensive one, we think that it should be permitted to choose the forum in this case, even though the state litigation has the elements of an action characterized as quasi in rem.” 352 U.S. 220 at 228, 77 S.Ct. 287, at 292. In United States v. Inaba, 291 F. 416, 419 (E.D.Wash.S.D.1923)," }, { "docid": "19602304", "title": "", "text": "this question as primarily concerned with whether this motion is in rem or in personam , but failed to fully explore the consequences of this antecedent issue, and in particular the limits of \"the prior exclusive jurisdiction doctrine.\" Goncalves , 865 F.3d at 1253; see also United States v. $79,123.49 in U.S. Cash & Currency , 830 F.2d 94, 97 (7th Cir. 1987) ; Blackhawk Heating , 530 F.2d at 157 ; 13F CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 3631 (3d ed.). To summarize the doctrine briefly, two suits, both of which are in rem or quasi in rem and require the courts to have possession or control of the same property, cannot proceed at the same time, and the second court must yield to the first. United States v. Bank of N.Y. & Tr. Co. , 296 U.S. 463, 477-78, 56 S.Ct. 343, 80 L.Ed. 331 (1936). Though we have concluded that it is plausible that this removed motion for declaratory relief is not entirely in rem for several reasons, if the district court finds otherwise, then it must determine whether the state court has prior jurisdiction over the same res . If both actions are in rem , the court must dismiss this case for lack of jurisdiction independent of any abstention principal or the validity of removal. But if one of the two cases is not in rem or quasi in rem , there is no jurisdictional bar and the case should stay in federal court. See Fischer , 314 U.S. at 555, 62 S.Ct. 380 ; Kline v. Burke Const. Co. , 260 U.S. 226, 229-30, 43 S.Ct. 79, 67 L.Ed. 226 (1922). Finally, we recognize that, just as HHS has a plausible argument for sovereign immunity, the Director has a non-frivolous argument that HHS is improperly jumping in line in Land of Lincoln's liquidation to the detriment of policyholders. Cf. U.S. Dep't of Treasury v. Fabe , 508 U.S. 491, 508-09, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993) (holding that the McCarran-Ferguson Act precluded the United States from obtaining priority over" }, { "docid": "19602303", "title": "", "text": "Procedure 12(b)(1), we have already explained that derivative jurisdiction is not an issue of subject-matter jurisdiction. See Rodas , 656 F.3d at 619. Furthermore, the entire principle behind derivative jurisdiction is that that the case was not \"properly constructed\" because it was brought in the wrong forum. Id. at 624. Remanding to a forum deemed wrong is nonsensical. Even if we believe the state court would be duty-bound to dismiss the case, the Director's procedural mechanism for reaching that result would undermine the strong federal interest in having federal defenses adjudicated in a federal forum regardless of their ultimate merit. Just as a losing federal defense may be resolved in federal court, so too must a winning defense that leads to a situation in which \"[t]he suit would be removed only to be dismissed.\" Willingham , 395 U.S. at 407, 89 S.Ct. 1813. Because we base our holding on the conclusion that HHS's claim of sovereign immunity is only \"plausible,\" we leave to the district court the final evaluation of the defense. The parties framed this question as primarily concerned with whether this motion is in rem or in personam , but failed to fully explore the consequences of this antecedent issue, and in particular the limits of \"the prior exclusive jurisdiction doctrine.\" Goncalves , 865 F.3d at 1253; see also United States v. $79,123.49 in U.S. Cash & Currency , 830 F.2d 94, 97 (7th Cir. 1987) ; Blackhawk Heating , 530 F.2d at 157 ; 13F CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 3631 (3d ed.). To summarize the doctrine briefly, two suits, both of which are in rem or quasi in rem and require the courts to have possession or control of the same property, cannot proceed at the same time, and the second court must yield to the first. United States v. Bank of N.Y. & Tr. Co. , 296 U.S. 463, 477-78, 56 S.Ct. 343, 80 L.Ed. 331 (1936). Though we have concluded that it is plausible that this removed motion for declaratory relief is not entirely in rem for several reasons," }, { "docid": "5532224", "title": "", "text": "are common to both proceedings in Kansas will not disturb the Texas District Court’s constructive possession or control of the land. An irreconcilable conflict between the state and federal judiciaries would only arise if both sought to exercise authority to dispose of the same res. See 1A J. Moore, Federal Practice fifí 0.222 and 0.223. Section 2283 was enacted to limit federal injunctions of state court proceedings in ordinary litigation between private litigants to those situations necessary to avoid unseemly conflict between state and federal courts. It is entitled to a strict construction. Atlantic Coast Line Ry. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970); Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957). It is well settled that the statute’s prohibition cannot be evaded by addressing the order to the parties rather than to the state court. Atlantic Coast Line Ry. v. Brotherhood of Locomotive Engineers, supra. Since this injunction does not come within any of the statute’s specifically defined exceptions, it must be vacated. The cause is remanded to the district court for further proceedings not inconsistent herewith. Vacated and remanded. AINSWORTH, Circuit Judge (dissenting) : The majority opinion ignores a longstanding rule of law that a federal court which obtains custody over property can restrain the litigants from asserting in another court any “claim, right, or title” to the same property. See Julian v. Central Trust Co., 193 U.S. 93, 114, 24 S.Ct. 399, 408, 48 L.Ed. 629 (1904). For this reason, I respectfully dissent. The majority assumes for purposes of its decision that the federal district court in Texas had in rem jurisdiction over the land at issue. In the Kansas suit the parties agreed that title to the land was an issue. Accordingly, I am persuaded by the following reasons expressed by the district judge for issuing the injunction: “A. Both the action in this Court and in the District Court of Sedge-wick County, Kansas, involve a determination of the actual ownership of real property located in Galveston County, Texas. Although" }, { "docid": "22960676", "title": "", "text": "suits or proceedings commenced by the United States, or by any agency or officers thereof expressly authorized to sue by Act of Congress.” This statute clearly grants the federal courts jurisdiction to entertain a suit by the United States to quiet title. See United States v. Zweifel, 508 F.2d 1150, 1155 (10th Cir.1975); Ellis v. Cates, 178 F.2d 791, 794 (4th Cir.1949); cf. Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957) (affirming injunction against state court proceedings that was issued to protect jurisdiction of federal court in quiet title action brought by United States). The judgment in such a case would then bind anyone over whom the district court obtained personal jurisdiction. In determining whether the United States held title to the Property, the district court had power to decide whether the mineral rights had been severed from the surface estate, whether the United States had statutory authority to acquire mineral rights, whether Oliphant had acquired the mineral rights at the sheriffs sale, whether the United States had used an improper source of funds to pay for the Property, and whether Buck had acquired 1.81 acres of the Property by paying real estate taxes. The parties to the case could have raised any of these matters in the original quiet title action and could have appealed any adverse rulings. What they cannot do is raise these matters in a motion to set aside the judgment years later on the ground that the judgment is void. Appellants next argue that, at least with respect to mineral rights, there was “no res over which the District Court acquired jurisdiction” because the mineral rights had been severed from the surface estate. This argument is misconceived. The court was not exercising in rem jurisdiction over the Property. Rather, its jurisdiction was predicated on the identity of the party (the United States) bringing the action. See Archer v. United States, 268 F.2d 687, 690 (10th Cir.1959) (quiet title action by United States was quasi in rem); 11 Wright & Miher § 3631, at 5-6 (“federal court may" }, { "docid": "12701052", "title": "", "text": "it was also necessary to inquire “whether the granting of an injunction was proper in the circumstances of this case.” Leiter Minerals, Inc. v. United States, supra, at 226, 77 S.Ct. at 291. The United States is not entitled to an injunction staying state court proceedings where the state court is the first court to assume jurisdiction over the subject matter property of an action in rem or quasi in rem. United States v. Bank of New York & Trust Co., 296 U.S. 463, 477, 56 S.Ct. 343, 80 L.Ed. 331 (1936); Penn General Casualty Co. v. Com. of Pennsylvania, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935). On the other hand, the mere fact that certain property in possession or custody of the state court is indirectly related to the action in the federal court is not a bar to the exercise of federal jurisdiction “where the final judgment does not undertake to interfere with the state court’s possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court.” Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 298, 90 L.Ed. 256 (1946). In that case, the Supreme Court held that it was proper to exercise jurisdiction where the Alien Property Custodian sought a judgment ordering the executor of an estate being administered in California to pay over the net estate. The principle applied in Markham v. Allen, supra, is derived from a line of cases which hold that the exercise of jurisdiction over property by one court does not prevent other courts from rendering “any judgment not in conflict with that court’s authority to decide questions within its jurisdiction and to make effective such decisions by its control of the property.” United States v. Klein, 303 U.S. 276, 281, 58 S.Ct. 536, 538, 82 L.Ed. 840 (1938). The actions “to adjudicate rights” of which the Court speaks in Markham v. Allen, supra, are not in rem actions, but those in which the “judgments therein do not deal with the property and order" }, { "docid": "21190171", "title": "", "text": "the appeal, of the order for immediate possession issued on May 15, 1961, (3) suspension of the order of injunction issued on May 31, 1961, and (4) any other relief deemed appropriate to preserve the status quo while this appeal is pending. On October 5, 1961, this court entered its order staying certain provisions of the district court order under review pending disposition of this appeal, provided Eden file a supersedeas bond in an indicated amount. We now proceed to consider, on the merits, the appeal from the order con•cerning which we have granted a partial stay. Title 28 U.S.C.A. § 2283, providing that a court of the United States may not grant an injunction to stay proceedings in a state court “except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments,” is inapplicable to stays sought by the United States. Leiter Minerals, Inc. v. United States, 352 U.S. 220, 226, 77 S.Ct. 287, 291, 1 L.Ed.2d 267. But the question remains whether the granting of an injunction was proper in the circumstances of this case. It was proper if necessary to prevent impairment of any rights obtained, or to be obtained, by the United States in the •condemnation proceeding. See United States v. Bank of New York & Trust Co., :296 U.S. 463, 480-481, 56 S.Ct. 343, 80 L.Ed. 331; Leiter Minerals, Inc. v. United States, supra, at 226, 77 S.Ct. 287. Two factors, the court found, made it necessary to order Eden to obtain •dissolution of the state court temporary restraining order and to enjoin further state injunction proceedings. The first •of these was, in effect, that in the state action, Eden contests the ownership of the United States in the land despite the declaration of taking. The second was that, in the state action, Eden sought relief which would make ineffective the order of immediate possession, and which would interfere with the exercise of ownership of the United States in this land. The district court found that in the state action Eden asserted continued" } ]

[ { "docid": "21893426", "title": "", "text": "174 N.L.R.B. 770 (1969), the Board held that “an employer confronted with a union organizing campaign should decide the question of granting or withholding benefits as he would if a union were not in the picture; if his course of action in granting or withholding benefits is prompted by the Union’s presence, he violates the Act.” Courts have recognized the “dilemma” facing an employer considering a grant of benefits during a union campaign, for “to hold that in judging employer motive one must hypothesize a case where no union is watchfully present is to ask the employer to behave in an extraordinarily disinterested fashion and to ignore a company problem that management simply cannot be expected to ignore.” Free-FIow Packaging Corp. v. NLRB, 566 F.2d 1124, 1130 (9th Cir. 1978). . A violation of the Act may also be found where benefits, although granted for business reasons, are announced “right before an election and sprung on the employees in a manner calculated to influence the employees’ choice.” NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 280 (1st Cir. 1975). See also J. P. Stevens & Co. v. NLRB, 461 F.2d 490, 492 (4th Cir. 1972). Thus, both the granting of the benefit and the timing of the grant must occur in the normal course of business. . Nor is there any evidence that the timing of the announcement that health insurance coverage had been secured was intended to influence the employees’ choice. Employees were informed of the coverage one week after the plan was implemented, and well over a month before the April 23 election. In NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 281 (1st Cir. 1975), the court noted that “[i]t is obvious that the closer a wage benefit comes to the day of the election, the harder it will be for the union to answer, and the greater the danger that the benefit will be manipulated to sway the election.” . For instance, the First Circuit has stated: We think when an employer, without having some fairly rudimentary factual explanation for the timing," } ]

[ { "docid": "13000372", "title": "", "text": "union animus demonstrated by the Respondent’s commission of unfair labor practices at” one store (in Fairhope, Alabama). The Board found that the burden shifted to Delchamps to produce evidence that the wage increase was unrelated to the presence of union activity and held that Delchamps had failed to produce such evidence. III. We must affirm a Board decision if it is supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); 29 U.S.C. § 160(e)-160(f). We conclude, however, that the General Counsel did not satisfy the applicable burden of proof; that the Board relied on suspicious circumstances “in the face of positive testimony given by reputable and unimpeached witnesses”, NLRB v. Crosby Chemicals, Inc., 5 Cir. 1960, 274 F.2d 72, 74 n. 5, 78. Section 8(a)(1) of the Act provides that “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7 of the Act].” 29 U.S.C. § 158(a)(1). Section 7 provides that employees “shall have the right to self-organization, to form, join, or assist labor organizations . . .”. 29 U.S.C. § 157. The Act does not attempt to restrict the gratuitous conferral of economic benefits by a non-union employer on its employees. See NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964); NLRB v. WKRG-TV, Inc., 5 Cir. 1973, 470 F.2d 1302, 1307-1308. Although ordinary attempts by an employer to stay ahead of unionization are entirely proper, the Act comes into play where the situation has sufficiently crystallized so that some specific orientation exists. It has long been recognized that the inherent danger in “well-timed increases in benefits is the suggestion of a fist inside the velvet glove.” NLRB v. Exchange Parts Co., supra. Thus the conferral of economic benefits upon the employees “which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect”" }, { "docid": "13000374", "title": "", "text": "is as much a § 8(a)(1) violation as are “intrusive threats and promises”. NLRB v. Exchange Parts Co., supra. In determining whether a velvet-glove violation exists courts have looked at a number of factors, such as whether the employer has manifested an anti-union animus, the timing of the wage increase, thg employer’s knowledge of union activity, and the relation of the wage increase to past practices. See generally Russell-Newman Manufacturing Co. v. NLRB, 5 Cir. 1969, 407 F.2d 247, 252. The Board contends that there was more than sufficient evidence on which to bottom its finding of a § 8(a)(1) violation. First, the Board correctly observes that we recently have had occasion to enforce a Board order concerning unfair labor practices committed by Delchamps at one of the Mobile-Baldwin stores. Moreover, Del-champs delivered an undisputably legal but nonetheless anti-union speech in August 1976, shortly after it learned of the union activity. Included in the speech was a reminder to the employees of the fact that Delchamps, and not the union, provides the economic benefits. The difficulty with the Board position is that the speech occurred during August, whereas the wage increase was neither announced nor implemented until November, three months later. No raise in pay was mentioned in the speech. There was no other evidence presented tending to connect the speech with the raise. There was only one anti-union speech; the unfair labor practices occurred at only one of the many Baldwin stores. The Board also contends that the initial decision to increase wages was made about the time Delchamps learned of the union activity, but a wage increase made during a union organizational campaign is not forbidden unless it is granted for the purpose of restraining employees in the free exercise of their right of choice of whether to unionize. Louisburg Sportswear Co. v. NLRB, 4 Cir. 1972, 462 F.2d 380, 384. According to the testimony of Delchamps’ vice-president and secretary, Joel O. Swanson, the actual decision as to when to implement a wage increase and how much of an increase to grant was not made until shortly before" }, { "docid": "8139560", "title": "", "text": "on Labor Law 450 (1976). Although the decision to grant a particular benefit may rest ultimately with the discretion of the employer, an employee may nevertheless form a reasonable expectation for the benefit based on past practices. This expectation, for the purposes of the duty to bargain, becomes part of the terms and conditions of employment. NLRB v. Ralph Printing & Lithog. Co., 433 F.2d 1058, 1062 (8th Cir.1970), cert. denied, 401 U.S. 925, 91 S.Ct. 883, 27 L.Ed.2d 829 (1971). Thus, a unilateral change occurs when a traditional Christmas bonus is cancelled, NLRB v. Exchange Parts, 339 F.2d 829, 831 (5th Cir.1965), or reduced, NLRB v. McCann Steel Co., 448 F.2d 277, 279 (6th Cir.1971). A wage increase announced or scheduled before a union election may also support a reasonable expectation. Failure to grant the increase without bargaining violates § 8(a)(5). Allied Production Corp., 548 F.2d at 653. On occasion, it may be difficult for an employer to determine what benefit increases are merely maintaining the status quo and what increases are a departure. The Board offers this reasonable rule: An employer’s legal duty in deciding whether to grant benefits while a representation case is pending is to determine that question precisely as he would if a union were not in the picture. If the employer would have granted the benefits because of economic circumstances unrelated to union organization, the grant of those benefits will not violate the Act. On the other hand, if the employer’s course is altered by virtue of the union’s presence, then the employer has violated the Act, and this is true whether he confers benefits because of the union or withholds them because of the union. McCormick Longmeadow Stone Co., 158 N.L.R.B. 1237, 1242 (1966). But the difficulty of determining when an increase is consistent with the existing structure of wages and benefits does not excuse an employer from its duty to bargain. When faced with such indeterminacy, the clear solution is to give the union notice and an opportunity to bargain over the contemplated change. NLRB v. United Aircraft Corp., 490 F.2d 1105," }, { "docid": "8139557", "title": "", "text": "or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit. . Although Peabody claims Gibbs “understood” Menzie’s remarks to be merely opinion, Gibbs’ testimony indicates only that he heard Menzie say it was his opinion. Gibbs nowhere states that he accepted it as such. . This is not a situation similar to that before the Second Circuit in United Aircraft Co. v. NLRB, 490 F.2d 1105 (1973). There the court enforced an 8(a)(5) charge where the employer, in order to preserve its bargaining position relative to a newly elected union, withheld from its newly organized employees a scheduled wage increase. One among several defenses raised by the employer was the contention that the difficulty in ascertaining whether the wage increase was an existing term of employment placed it in a dilemma — either granting or withholding. the wage hike might constitute an unfair labor practice. The court dismissed the argument, declaring that the company could have avoided all risk by notifying or consulting with the union beforehand. There are two significant differences between United Aircrañ and this case. First, in United Aircraft, the employer did not challenge the union’s right to represent the unit in question. Second, the court found that the wage increase had been scheduled and was an existing condition of employment. Neither of these facts exist in this case. Cf. Catholic Medical Center v. NLRB, 589 F.2d 1166, 1174 (2d Cir.1978). BAILEY BROWN, Senior Circuit Judge, concurring in part and dissenting in part. I concur in the majority’s opinion except that portion reversing the Board’s decision that Peabody violated its duty to bargain when it unilaterally refused to extend benefit increases to the Will Scarlet clerks. Peabody’s refusal to grant the increases created a disparity in the treatment of the Will Scarlet clerks and other Peabody employees including other warehouse clerks. I believe that this disparity, explained only by the Will Scarlet clerks’ choice of the union, was a change in" }, { "docid": "8913368", "title": "", "text": "without any objective evidence, to the effect that consequences not within the control of the employer would be probable. NLRB v. C. J. Pearson Co., 420 F.2d 695 (1st Cir. 1969). In holding that an employer had committed an unfair labor practice by granting seniority wage increases and insurance premium benefits for purposes of discouraging unionization, we looked at both the date of decision by management and the date of the announcement as they related to the scope of union activities and the proximity of a union election. D’Youville Manor v. NLRB, 526 F.2d 3 (1st Cir. 1975). See NLRB v. Styletek, 520 F.2d 275 (1st Cir. 1975). On the other side of the coin, we have held that an employer’s notice to employees that the Union sought to take away a wage increase was not a threat of reprisal or force or promise of benefit and did not constitute an unfair labor practice where the statement was susceptible of proof and equal time for contradiction was available. Coletti’s Furniture, Inc. v. NLRB, 550 F.2d 1292 (1st Cir. 1977); NLRB v. Gotham Industries, Inc., 406 F.2d 1306 (1st Cir. 1969). The issue here is whether Topham’s comment made in response to a query at a meeting suggested by the hospital and then requested by the CS&D employees is a violation of the Act. Topham testified that he was asked whether the hospital discriminated between union and nonunion employees. He responded that the hospital did not discriminate and then made the critical comment, “no matter what the union got the union employees, the hospital employees would also get.” The Board, in its brief, places principal reliance on Casey Manufacturing Company v. United Shoe Workers of America, AFL-CIO, 167 N.L.R.B. 89 (1967), in which it held that an unsolicited speech to employees on the day before the scheduled NLRB election containing a statement similar to the one here was an unfair labor practice. [W]e had to maintain the same working conditions in all our plants because of their close proximity. Id. at 96. In finding that these words constituted an unlawful promise" }, { "docid": "15780269", "title": "", "text": "In NLRB v. Dorn’s Trans. Co., 405 F.2d 706 (2d Cir. 1969), the trial examiner had found no violation of § 8(a)(1) for failure to give a wage increase, although the employee had been told that she would not receive an increase until the “union problem” was settled. The examiner found that the increase had been denied after consultation with counsel because it was believed that the increase might constitute an unfair labor practice. The Board disagreed with the examiner’s conclusions and found that failure to grant the increase constituted an unfair labor practice. The court found no substantial evidence to support the Board’s finding of a violation. It held that where the employer had not given “any * * * indication that the withholding was other than a good faith effort to conform to the requirements of the law” there was no illegal motive and no violation. 405 F.2d at 715. In J. J. Newberry Co. v. NLRB, 442 F.2d 897 (2d Cir. 1971), the court again rejected the Board’s finding that failure to grant a wage increase constituted an unfair labor practice. It held: “An employer’s dilemma is particularly obvious in a situation where, as here, wage reviews are fairly regular but the wage increases are subjective and discretionary. In such a case, under Dorn’s, we should not enforce the Board’s order absent a finding, supported by substantial evidence, that the company was illegally motivated and did not act in a ‘good faith effort to conform to the requirements of the law’.” 442 F.2d at 900. We agree with those holdings. Here, in our judgment, the status quo was not so clearly apparent as to dissipate the employer’s dilemma and accordingly the circumstances were not such as to give rise to an inference of antiunion motive. On this record, absent such an inference, there is not substantial evidence to support a finding that the company did not act in a good faith effort to conform to the requirements of law. We conclude that the Board’s order in this respect is not entitled to enforcement. 3. Coercing of Employees" }, { "docid": "11986516", "title": "", "text": "exceptional employer who may raise wages out of fraternal generosity, we suppose that most nonunion employers give raises for one or both of two reasons: to keep employees, old and new, in the plant, and to keep unions out. As to the latter it cannot be that every time it can be shown that an employer was seeking to stay one step ahead of unionization he was guilty of an unfair labor practice; the situation must have sufficiently crystallized so that some specific orientation exists. It would be a sorry consequence if the Labor Relations Act were to be construed as causing every nonunionized employer to think twice before initiating a wage increase lest some union should appear and claim that it had been frustrated. Cf. Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 114 (1964). At a minimum it must be that to establish improper motivation requires a showing that an employer knows or has knowledge of facts reasonably indicating that a union is actively seeking to organize, or else that an election is, to use the Board’s word, impending. See Norfolk Livestock Sales Co., 1966, 158 N.L.R.B. 1595; Sigo Corp., 1964, 146 N.L.R.B. 1484, 1486; Imco Container Co. v. NLRB etc., 4 Cir., 1965, 346 F.2d 178, 180. Cf. NLRB v. Radcliffe, 9 Cir., 1954, 211 F.2d 309, 315, cert. denied Homedale Tractor & Equipment Co. v. NLRB, 343 U.S. 833, 75 S.Ct. 56, 99 L.Ed. 657. We are concerned here only with the latter alternative as there was no suggestion of any organizational activities, let alone activity that might have come to respondents’ attention. The examiner treated the issue of respondents’ knowledge one way; the Board, in its argument before us, in another. We consider first the examiner’s approach. He concluded that respondents “well knew that another representation election was in the offing.” There was no direct evidence, however, of such knowledge, and the conclusion was exclusively an inference. Indeed, all the affirmative evidence was to the contrary. The testimony was that, prior to September 23, no" }, { "docid": "15780266", "title": "", "text": "always easy to ascertain the applicable status quo. It is not always clear to the employer whether a wage increase would conform to the status quo or depart from it. See: Queen Mary Restaurants Corp. v. NLRB, 560 F.2d 403 (9th Cir. 1977). The employer’s dilemma, then, persists, save when the status quo — the state of existing conditions of employment with respect to wage increases — is clearly apparent and it can with assurance be said that grant or denial of a wage increase would constitute a change from those conditions. In a case where status quo is not clearly apparent, and accordingly the employer’s dilemma persists, no inference of antiunion motive can be said to flow from an after-the-fact determination of what the status quo in fact was. There is no rational basis for such an inference unless the status quo is clearly apparent and it can be reasoned that the employer wilfully chose to depart from it. In deciding that failure to grant a wage increase constituted an unfair labor practice, the Administrative Law Judge ruled that the dispositive question was whether the history of wage increases was such as to “generate ‘reasonable expectations’ [on the part of the employees] that plant-wide wage increments calculated to match Safe-T Pacific’s rate changes would continue.” He found that the employees reasonably expected an increase. He further ruled that the company decision to grant or withhold an increase should have been made just as it would have been made in the absence of the union. Apparently on this basis he refused to consider McCandless’s testimony as to advice of counsel. These rulings were adopted by the Board. We cannot accept these rulings. The reasonable expectation of the employees respecting wages cannot be said to have affected their freedom of choice unless their failure to get what they expected was read by them as a warning from the employer as to what the outcome of the election should be. The Administrative Law Judge may have inferred that this was how it was read by them. But in our judgment the focus" }, { "docid": "884100", "title": "", "text": "the question whether, in the context of union organizational activity, an employer commits an unfair labor practice by withholding an expected wage increase. While there is a difference of language in these opinions as to whether an improper employer motive must be shown, a common thread of all is that the presence of such a motive justifies an unfair labor practice finding. Here, the administrative law judge and the Board both found, after careful examination of all the circumstances surrounding the Company’s decision to withhold the March 1 increase, that the Company’s purpose was to convince its employees that the Union was responsible for the loss of their wage increase-. We conclude that this finding is sup ported by substantial evidence and accordingly enforce the Board’s order. In reaching our conclusion, we rely on the Trial Examiner’s discussion of the necessity for a motive by the Employer to interfere with the employees’ free choice only in the circumstances of this case and only with respect to the violation of Section 8(a)(3). We had occasion in NLRB v. Dorn’s Transportation Co., 405 F.2d 706 (2d Cir. 1969), in a similar context, to identify two factors strongly indicative of illegal employer motivation in cancelling a pay raise — prior announcement that the raise would take effect on a specific date and efforts to fix the blame for cancellation upon the Union. Id. at 715. Both are present here; the guards had been promised the raise effective March I, and the arrival on the scene of a “third party” was the stated reason for cancellation. Together, these factors shift the burden to the employer to come forward with an explanation for his conduct. And here, despite the Company’s professed concern over exposure to “legal action” if it went ahead, it offered insufficient evidence that this was its actual motive for withholding the increase. The Company did not present testimony from those of its officers who actually made the decision to withhold. Cf. NLRB v. M. H. Brown Co., 441 F.2d 839, 842 (2d Cir. 1971); NLRB v. Dorn’s Transportation Co., supra, 405 F.2d" }, { "docid": "15780265", "title": "", "text": "pendency of a Board representation election. NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 97-98 (5th Cir. 1970); NLRB v. Dan Howard Mfg. Co., 390 F.2d 304, 307 (7th Cir. 1968). The court in Dothan Eagle, Inc., stated: “At first glance it might appear that the employer is caught between the proverbial ‘devil and the deep blue sea.’ It is an unfair labor practice to grant a wage increase during the campaign and bargaining periods, but at the same time it may be an unfair labor practice to refuse to grant an increase during this same period. * * * We find little merit in such arguments. The cases make it crystal clear that the vice involved in both the unlawful increase situation and the unlawful refusal to increase situation is that the employer has changed the existing conditions of employment. It is this change which is prohibited and which forms the basis of the unfair labor practice charge.” 434 F.2d at 98. We agree with that statement of the law. But it is not always easy to ascertain the applicable status quo. It is not always clear to the employer whether a wage increase would conform to the status quo or depart from it. See: Queen Mary Restaurants Corp. v. NLRB, 560 F.2d 403 (9th Cir. 1977). The employer’s dilemma, then, persists, save when the status quo — the state of existing conditions of employment with respect to wage increases — is clearly apparent and it can with assurance be said that grant or denial of a wage increase would constitute a change from those conditions. In a case where status quo is not clearly apparent, and accordingly the employer’s dilemma persists, no inference of antiunion motive can be said to flow from an after-the-fact determination of what the status quo in fact was. There is no rational basis for such an inference unless the status quo is clearly apparent and it can be reasoned that the employer wilfully chose to depart from it. In deciding that failure to grant a wage increase constituted an unfair labor practice, the" }, { "docid": "5589731", "title": "", "text": "had never received any discipline until he rejected Van Vlerah’s offer of nonunion employment. The ALJ based his conclusions on the testimony of Reust and the other witnesses presented by the General Counsel. He specifically found the testimony of these witnesses to be credible. On the other hand, he found that the testimony of Van Vlerah and some of the other witnesses called by WM was inconsistent, evasive and contradictory. On January 31, 1996, the NLRB affirmed the ALJ’s rulings, findings and conclusions and adopted, with a minor modification, the ALJ’s recommended order. II DISCUSSION A. The standard governing our review of unfair labor practice proceedings before the Board is well established. “We will uphold the Board’s order if ‘substantial evidence on the record as a whole supports its factual findings and if its conclusions have a reasonable basis in the law.’ ” Dilling Meek Contractors, Inc. v. NLRB, 107 F.3d 521, 523-24 (7th Cir.) (quoting Carry Cos. of Illinois v. NLRB, 30 F.3d 922, 926 (7th Cir.1994)), cert. denied, — U.S. -, 118 S.Ct. 165, — L.Ed.2d -(1997). The applicable substantive standards are also well established. Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, guarantees employees the right to self-organization by forming, joining or assisting labor organizations. Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), protects this right by making it an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.” It is therefore an unfair labor practice to threaten an employee with shop closure or with discharge or to interrogate coercively an employee in order to discourage union activities. See NLRB v. Q-1 Motor Exp., Inc., 25 F.3d 473, 477 (7th Cir.1994), cert. denied, 513 U.S. 1080, 115 S.Ct. 729, 130 L.Ed.2d 633 (1995); Central Transp., Inc. v. NLRB, 997 F.2d 1180, 1189 (7th Cir.1993). Similarly, it is an unfair labor practice to grant or even to promise a wage increase or other benefit in order to discourage an employee’s support of a union. In determining whether an employer’s" }, { "docid": "15780268", "title": "", "text": "of inquiry must be upon what the motive of the employer in truth was and not upon what the employees might reasonably (although perhaps mistakenly) have assumed the motive to be. Only when we focus on the employer does the question become the crucial one of his antiunion intent. Further, to hold that in judging employer motive one must hypothesize a case where no union is watchfully present is to ask the employer to behave in an extraordinarily disinterested fashion and to ignore a company problem that management simply cannot be expected to ignore. The question quite simply is whether the employer in good faith sought to comply with the requirements of law. If he did, then failure to grant a wage increase could not constitute an effort to affect the outcome of the election. The Second Circuit has held that in cases such as this there should be a Board finding supported by substantial evidence that the actions of the employer were not taken in a good faith effort to comply with the law. In NLRB v. Dorn’s Trans. Co., 405 F.2d 706 (2d Cir. 1969), the trial examiner had found no violation of § 8(a)(1) for failure to give a wage increase, although the employee had been told that she would not receive an increase until the “union problem” was settled. The examiner found that the increase had been denied after consultation with counsel because it was believed that the increase might constitute an unfair labor practice. The Board disagreed with the examiner’s conclusions and found that failure to grant the increase constituted an unfair labor practice. The court found no substantial evidence to support the Board’s finding of a violation. It held that where the employer had not given “any * * * indication that the withholding was other than a good faith effort to conform to the requirements of the law” there was no illegal motive and no violation. 405 F.2d at 715. In J. J. Newberry Co. v. NLRB, 442 F.2d 897 (2d Cir. 1971), the court again rejected the Board’s finding that failure to" }, { "docid": "3949656", "title": "", "text": "the announcement and the conferral of benefits separately. Similarly, J.P. Stevens & Co. v. NLRB, 461 F.2d 490 (4th Cir.1972), enforced a Board order based on a finding that the employer violated section 8(a)(1) “by announcing ... the establishment, of an additional paid holiday two days before a scheduled Board election . ... ” Id. at 491. But the announcement in that case was obviously closely connected with the illegal decision to grant the benefit: the NLRB had upheld the announcement of a wage increase on the same occasion, where the wage increase was part of an industry-wide wage movement. Id. at 492; see NLRB v. Carilli, 648 F.2d 1206 (9th Cir.1981) (implementation of new medical and dental insurance program during decertification procedures); NLRB v. Miller Redwood Co., 407 F.2d 1366 (9th Cir.1969) (promises and grants of economic benefits during union organizational campaign). This court has previously overturned an unfair labor practice finding based on the mere communication of increased benefits. NLRB v. Tommy’s Spanish Foods, Inc., 463 F.2d 116 (9th Cir.1972) addressed a Board order that rested in part on a finding that the employer had unlawfully announced before an election that it was considering improving insurance benefits. The decision denied enforcement to that part of the order, quoting a Board member’s dissenting opinion: Just as an employer is free to rehearse for employees the benefits which they have previously received from the employer without a union, in order that they may evaluate the employer’s past performance, so should an employer be permitted to notify employees of efforts in progress to improve the lot of the employees. Since it is uncontradicted that the Respondent’s initial effort in the matter of increasing insurance predated the Union’s appearance on the scene and, accordingly, cannot be characterized as simply a stratagem in response to the threat of unionism, I would find that Respondent’s announcement of the contemplated insurance increase was permitted under Section 8(c). Id. at 119. Tommy’s properly applied the rule that an employer’s speech is protected under section 8(c) unless it contains threats or promises. The present case even more" }, { "docid": "17080051", "title": "", "text": "the next increase was due and while the pressroom election was pending, the company altered its prior practice. It granted the regular increase to the apprentices in the composing room but denied a similar increase to the press-room employees. The union then won the pressroom election, but the company continued to withhold the progression increases from the pressroom employees, despite the union’s repeated requests that the progression increases be paid. The Trial Examiner found — and the Board agreed — that the company stopped granting increases prior to the election “in an attempt to defeat the Union by placing the onus for the denial of raises on the Union,” and that the company continued to refuse the wage increases after the union victory for the purpose of sowing dissension in the union ranks. The employer claimed, however, that prior to the election it would have been an unfair labor practice to grant the progression increases and that after the election the issue was a bargainable item. We find these defenses without merit. Section 8(a) (1) of the National Labor Relations Act provides that it shall be an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise” of their right to organize for mutual aid and protection. A violation of this section occurs if an employer grants an increase in wages or other benefits during an election campaign for the purpose of persuading the employees to vote against the union. NLRB v. Exchange Parts Co., 1964, 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed. 2d 435; Russell-Newman Manufacturing Co. v. NLRB, 5 Cir. 1969, 406 F.2d 1280; Crown Tar & Chemical Works v. NLRB, 10 Cir. 1966, 365 F.2d 588. In Exchange Parts, supra, the Supreme Court explained: “The broad purpose of § 8(a) (1) is to establish ‘the right of employees to organize for mutual aid without employer interference.’ Republic Aviation. Corp. v. [National] Labor [Relations] Board, 324 U.S. 793, 798, 65 S.Ct. 982, 985, 89 L.Ed. 1372, [1377] [157 A.L.R. 1081]. We have no doubt that it prohibits not only intrusive threats" }, { "docid": "21882928", "title": "", "text": "committed these unfair labor practices. The violations fall into six categories: (1) threatening employees with discharge or layoff; (2) threatening employees with investigations and deportations by Immigration and Naturalization Service authorities; (3) creating the impression of surveillance of union activities; (4) interrogating employees about union activities; (5) promising better wages and medical coverage to thwart union organization; and (6) actually granting wage increases to thwart union organization. II. Sections 8(a)(3) and 8(a)(1) Violations A. Applicable Law Section 8(a)(3) of the Act makes it an unfair labor practice for an employer to discriminate against an employee “in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. . . . ” An employer violates section 8(a)(3) when it discharges an employee because of his union activities. The critical issue in a section 8(a)(3) claim is whether the employer’s actions were motivated by anti-union considerations. NLRB v. Gogin, 575 F.2d 596, 601 (7th Cir. 1978); Jay’s Foods, Inc. v. NLRB, 573 F.2d 438, 443 (7th Cir. 1978), cert. denied, 439 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978). Because motive is rarely open to direct proof, it is “to be determined by the Board from consideration of all the evidence and in making its determination the Board is free to rely on circumstantial, as well as direct evidence.” NLRB v. Gogin, 575 F.2d at 601. This court recently approved the Board’s refinement of the analysis used' to determine the causal relationship between the employee’s protected activities and the employer’s action. Peavey Co. v. NLRB, 648 F.2d 460 (7th Cir. 1981). Under this analysis: The General Counsel must first make a prima facie showing that the employee’s protected conduct was a motivating factor in the employer’s decision to discharge the employee. Once this is established,' the burden shifts to the employer to demonstrate that he would have discharged the employee even in the absence of the protected conduct. Peavey Co. v. NLRB, 648 F.2d at 461 (7th Cir. 1981). See Statler Industries, Inc. v. NLRB, 644 F.2d 902, 905" }, { "docid": "16643201", "title": "", "text": "punishing workers for favoring union representation, represent ‘closely related’ parallel conduct toward other employees”); NLRB v. Braswell Motor Freight Lines, Inc., 486 F.2d 743, 745 (7th Cir. 1973) (practices within same general time period, part of overall plan to resist organization, and of the same class and character as those in the original charge); NLRB v. Central Power & Light Co., 425 F.2d 1318, 1321 (5th Cir. 1970) (“events complained of were all part of the same alleged anti-union campaign, were close together in time, and were clearly covered by the general language of the formal charge”). Other decisions have eliminated, as a practical matter, any restraint on the scope of amendments by reviewing amendments as a specification of the standard language appearing on the charge form that “[b]y the above and other acts, the above-named employer has interfered with .. .. ” protected rights. See e. g., NLRB v. Transport, Inc. of So. Dakota, 453 F.2d 193, 196 (8th Cir. 1971); North American Rockwell Corp. v. NLRB, 389 F.2d 866, 870 (10th Cir. 1968). . Section 8(a)(3) proscribes as an unfair labor practice “discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . . ” 29 U.S.C. § 158(a)(3). . This incident occurred outside the § 10(b) limitations period which commenced March 1, 1977. . The hospital posits that whatever action it took would necessarily have been taken unilaterally, hence the risk of unilaterally changing conditions of employment by granting or denying the wage increase. EMMC could have avoided this dilemma by bargaining with the union about its plans. Such a dilemma may in fact exist before an initial election, where the employer must unilaterally decide the propriety of a pay raise because there is no union to bargain with. See NLRB v. United Aircraft Corp., 490 F.2d 1105, 1111 & n. 6 (2d Cir. 1973). Here, by contrast, EMMC was engaged in bargaining well before the time it decided to deny the increase and yet failed to raise the matter" }, { "docid": "15780263", "title": "", "text": "increase in the face of the pending election would, in all probability, trigger an unfair labor practice charge by the union, and that in the light of past decisions the Board would most likely find that the raise constituted an attempt to affect the outcome of the election. On this advice MeCandless refus ed to grant a raise at that time. Employees who inquired were advised that no raise would be granted in October, since to do so prior to the election would constitute an unfair labor practice. Certainly the law is well established that a presumption of illegal motive adheres to wage increases granted prior to an election. NLRB v. Newman-Green, Inc., 401 F.2d 1 (7th Cir. 1968), 69 L.R.R.M. 2129; NLRB v. Pandel-Bradford, Inc., 520 F.2d 275 (1st Cir. 1975) 89 L.R.R.M. 3195. In the case of Baltimore Catering Co., 148 N.L.R.B. 1107, the Board stated: “In the absence of evidence demonstrating that the timing of the announcement of changes in benefits was governed by factors other than the pendency of the election, the Board will regard interference with employee freedom of choice as the motivating factor. The burden of establishing a justifiable motive remains with the Employer.” In the case of J. C. Penney Co., Inc., 160 N.L.R.B. 279, 62 L.R.R.M. 1597, enf’d 384 F.2d 479 (10th Cir. 1967), the Board stated: “With a decision in the representation case imminent and the possibility of an election soon thereafter a matter of reasonable expectation, I find it hard to understand why the Respondent felt impelled to grant the wage increases at the time it did. As matters actually developed, had the Respondent withheld action for another month, the election would have been held and the Respondent would have granted the wage increases within the span of time it customarily followed * * * » 160 N.L.R.B. at 284. The Board relies on the rule that an employer interferes with his employees’ freedom of choice, in violation of § 8(a)(1) of the Act, by withholding well established or previously promised benefits because of a union organizing campaign or the" }, { "docid": "8913367", "title": "", "text": "Relations Act § 8(c), 29 U.S.C. § 158(c). An important element in determining whether speech is protected or an unfair labor practice is the employer’s considerable economic power over its employees. Gissel Packing Co., supra, 395 U.S. at 617, 89 S.Ct. 1918. Statements which are determined to be coercive, such as threats of reprisal or force or promise of benefits, are not protected. Textile Workers v. Darlington Mfg. Co., 380 U.S. 363, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). Coerciveness is to be determined at least partially from the context in which the speech is made. NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348 (1941). An employer’s freedom of comment in the face of union organizing activity does not include an untrue statement that unionization may be expected to cost employees money, NLRB v. Gorbea, Perez & Morell, S. en C., 300 F.2d 886 (1st Cir. 1962), or an employer’s prediction that unionization might result in unnecessary consequences deliberately inflicted by the employer, or a statement, made without any objective evidence, to the effect that consequences not within the control of the employer would be probable. NLRB v. C. J. Pearson Co., 420 F.2d 695 (1st Cir. 1969). In holding that an employer had committed an unfair labor practice by granting seniority wage increases and insurance premium benefits for purposes of discouraging unionization, we looked at both the date of decision by management and the date of the announcement as they related to the scope of union activities and the proximity of a union election. D’Youville Manor v. NLRB, 526 F.2d 3 (1st Cir. 1975). See NLRB v. Styletek, 520 F.2d 275 (1st Cir. 1975). On the other side of the coin, we have held that an employer’s notice to employees that the Union sought to take away a wage increase was not a threat of reprisal or force or promise of benefit and did not constitute an unfair labor practice where the statement was susceptible of proof and equal time for contradiction was available. Coletti’s Furniture, Inc. v. NLRB, 550 F.2d" }, { "docid": "15551464", "title": "", "text": "1 of any given calender [sic] year. This policy was promulgated in 1974. In August of 1974 employees received an increase of 10$ per hour. In August of 1975 employees received an increase of 10$ per hour and in August of ’76 employees received an increase of 15$ per hour. [Two,] the Employer began developing a pension program which included a life insurance benefit in 1975. The decision to implement said benefit was made in 1975. Said decision was made without knowledge of union activity. [Three,] the Employer decided to grant a ninth paid holiday in January, 1976. The decision to grant said holiday was made without knowledge of union activity- The Board found that the announcement of the wage increase and the additional holiday did not violate the Act because the company had an established policy of granting pay increases on August 1 of every year and because most of the employees became aware in January that there would be an additional holiday. Arrow’s first line of attack is that the stipulation foreclosed any determination by the administrative law judge and the Board that the pension plan was not predetermined. We do not read the stipulation to mean that the pension plan had been finalized in 1975. Under the circumstances, the Board had a duty to determine the status of the pension program in January and May of 1976. The stipulation meant what it said; the employer had decided in 1975 to implement a life insurance benefit as part of a pension program. Moreover, as we shall develop later, we do not think the Board’s finding rises or falls solely on the question of when the plan was determined. Just recently in NLRB v. South Shore Hospital, 571 F.2d 677 (1st Cir. 1978), we reiterated the general rule that promises of benefits made by the employer just prior to a Board’s certification election for the purpose of influencing the election are unfair labor practices under section 8(a)(1). See NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964); D’Youville Manor v. NLRB, 526 F.2d" }, { "docid": "17080060", "title": "", "text": "during the tensions of organization, recognition and bargaining. In those cases where the employer was found guilty of an unfair labor practice for withholding benefits during the campaign period or during the process of collective bargaining, the basis of the charge was a finding that the employer had changed the established structure of compensation. United Steelworkers of America, AFL-CIO v. NLRB, supra; NLRB v. Zelrich Co., supra; NLRB v. Longhorn Transfer Service, Inc., supra; Armstrong Cork Co. v. NLRB, supra. These unilateral blandishing acts of the employer tend to interfere with the exercise of free choice by the employees which is an important raison d’etre of contemporary labor policy. In NLRB v. Dorn’s Transportation Co., 2 Cir. 1969, 405 F.2d 706, the court distinguished between the situation in which a unilateral raise must be given and the situation where such a raise would be an unfair practice, saying: “The broad purpose of Section 8(a) (1) is to establish ‘the right of employees to organize for mutual aid without employer interference.’ Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798, 65 S.Ct. 982, 985, 89 L. Ed. 1372 (1945). The issue under the Act is therefore whether in form and in purpose the withholding or conferring of economic benefits was to discourage and frustrate the statutory right of employees freely to organize and bargain collectively. “The present case presents no such interference with protected rights. The evidence relied upon by the Board consists of two conversations initiated by employees at a time when granting a wage increase would invite the charge that the Company was seeking to weaken the position of the union. This is not a situation where the employer has by public announcement specifically advised the employees that the union is causing them to lose a wage increase they would otherwise have received. Compare NLRB v. Agawam Food Mart, Inc., 386 F.2d 192 (1 Cir. 1967). Nor did the Company fail to give a pay raise which it had previously announced would be effective on a specific date. Compare NLRB v. Longhorn Transfer Service, Inc., 346 F.2d 1003 (5" } ]

[ { "docid": "15296060", "title": "", "text": "v. Dixie Terminal Co., 210 F.2d 538, 540, cert. denied, 347 U.S. 1015, 74 S.Ct. 871, 98 L.Ed. 1138 (1954). All of those cases are distinguishable, either because the employee had blatantly refused to accept a new assignment; because the employee had repeatedly violated company rules and was very insubordinate; because there was no evidence of anti-union feeling, or because there was no evidence that the company was aware of the employee’s union activities. Clearly, there is more evidence here to support the Board finding than in those cases. The Truckdrivers’ Case We now consider Jays’ challenge to the Board’s findings relative to the truckdrivers. It is well settled that an employer violates section 8(a)(1) of the Act when he engages in conduct which tends to interfere with his employees’ rights to organize, form, join, or assist a union organization. N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946). Furthermore, in determining whether a violation occurred, the impact of all the statements made by management must be judged in the context of the effect they would have on an employee while he is in the employer-employee relationship. N.L.R.B. v. Roselyn Bakeries, Inc., 471 F.2d 165, 167 (7th Cir. 1972). In considering the interrogations made in this matter by Jays’ managers, Japp, Timmons, and Staton, the Board could reasonably conclude that these interrogations were unlawful. See New Alaska Dev. Corp. v. N.L.R.B., 441 F.2d 491, 492-93 (7th Cir. 1971). The questions asked were not accompanied by assurances that there would be no reprisals. The fact that Japp, Staton, and Timmons all consistently received untruthful or noncommittal responses is evidence of the employees’ anxiety over management’s reaction to their union activity. Anxiety is symptomatic of fear, and it is unlawful to question so as to instill fear. See Self-Reliance Ukrainian American Cooperative Ass’n v. N.L.R.B., 461 F.2d 33, 36 (7th Cir. 1972). The questions asked by Jays’ managers of their employees were not the isolated interrogatories, free of coercion, which are protected by N.L.R.B. v. Century Broadcasting Corp., 419 F.2d 771, 780 (8th Cir. 1969), and other cases cited" } ]

[ { "docid": "12775761", "title": "", "text": "The panel disagreed with the characterization that the unfair practices were “few and isolated,” and, as such, did not warrant a bargaining order. DISCUSSION 1. Findings of Violations of §§ 8(a)(1) and 8(a)(3) The NLRB’s adoption of the Administrative Law Judge’s findings of fact can only be overturned on review if those findings are not supported by substantial evidence on the record considered as a whole. Labor-Management Relations Act, 1947, 29 U.S.C. §§ 160(e) and (f) (1976); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Applying this standard, we accept the Board’s adoption of the conclusions of the Administrative Law Judge that §§ 8(a)(1) and 8(a)(3) were violated by Grandee. The Administrative Law Judge’s finding of coercion in the interrogation of the employees on May 10 and May 19 satisfies three of the five factors of Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964). See NLRB v. Rubin, 424 F.2d 748, 751 (2d Cir. 1970); Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 492 (2d Cir. 1975). Substantial evidence indicates that Aaron Rosenberg was the highest ranking officer in the company, that employees Hill and Diffenbach supplied untruthful answers to the May 10 questioning, and that an atmosphere of hostility prevailed during the interrogation. Furthermore, the interrogation here can be regarded as being more coercive than the questioning proscribed in NLRB v. Solboro Knitting Mills, Inc., 572 F.2d 936, 939-40 (2d Cir. 1978), cert. den. 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978). In Solboro the group questioning consisted of one inquiry as to whether the employees wanted the union, which was greeted by silence. By contrast, the questioning on May 19 involved an inquiry into pro-union sentiment and inquiry into the reasons for that sentiment. We find that the Administrative Law Judge’s finding of coercion is supported by the evidence. The promises and grant of a benefit (the wage and health plan offers) were not expressly made dependent upon the employees’ rejection of the Union. Nevertheless, the timing of those offers indicated a coercive purpose and effect. See, e." }, { "docid": "5775316", "title": "", "text": "not be any concern about . . . the fact that cards were being passed out in that these were not permanent employees of [the Company] and in fact, would be leaving.” At quitting time that same day, Braun told Brady and Crabbe that each was being laid off for lack of work. II The Company contends that the Board erred in determining that it committed unfair labor practices both through interrogation and discriminatory discharges of employees. We address these issues separately- A Although interrogation of employees is not per se unlawful, L. C. Cassidy & Sons, Inc. v. NLRB, 415 F.2d 1358, 1361 (7th Cir. 1969); NLRB v. C & P Plaza Dep’t Store, 414 F.2d 1244, 1248 (7th Cir. 1969), cert. denied, 396 U.S. 1058, 90 S.Ct. 756, 24 L.Ed.2d 754 (1970), it need not be explicitly threatening to be coercive within the meaning of section 8(a)(1). If the conduct itself, viewed in context, may reasonably induce fear, it constitutes a violation of the Act. Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1115 (7th Cir. 1973); Blue Flash Express, Inc., 109 N.L.R.B. 591, 593 (1954). The interrogation charge here focuses on the questioning of two employees by supervisory personnel in an attempt to discover the identity of those distributing union authorization cards. The Company argues that regardless of whether the five-factor test developed in Bourne v. NLRB or the more general test ■ stated in Hughes & Hatcher, Inc. v. NLRB is applied, the interrogations were merely innocuous and not coercive conduct. We do not agree. Despite the absence of a history of company hostility and discrimination, and the suggestion that the Company’s attempt to learn the identity of the organizers was for “informational” purposes, we agree with the Board that the questioning of the two employees, Berger and Hayes, was coercive interrogation and a violation of section 8(a)(1). The administrative law judge found that Berger’s refusal to reveal the identity of the distributors was the result of fear of reprisal. The Company attempts to refute that finding by noting that in response to a question" }, { "docid": "9394744", "title": "", "text": "will take place; and (3) obtain the employee’s voluntary participation. See Bill Scott Oldsmobile, 282 NLRB 1073, 124 L.R.R.M. (BNA) 1161, 1987 WL 90245 (1987). Here there is no dispute that counsel for ITT gave Benita Pardonnet the necessary Johnnie’s Poultry warnings before questioning her as they prepared for the NLRB hearing. Nevertheless, even after an employer gives Johnnie’s Poultry warnings, an interview may violate § 8(a)(1) if “under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by” the NLRA. See Dayton Typographic Serv. v. NLRB, 778 F.2d 1188, 1194 (6th Cir.1985). While interrogation of an employee is not per se unlawful, see NLRB v. Thill, Inc., 980 F.2d 1137, 1140 (7th Cir.1992), “[a]n interrogation becomes illegal when the ‘words themselves or the context in which they are used ... suggest an element of coercion or interference.’ ” Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245, 1255 (5th Cir.1992) (quoting NLRB v. Ambox, Inc., 357 F.2d 138 (5th Cir.1966)); see also NLRB v. Complas Indus., Inc., 714 F.2d 729, 735 (7th Cir.1983). In assessing the coercive nature of an interrogation, the NLRB must consider “the background, the nature of the information sought, the questioner’s identity, and the place and method of interrogation.” Dayton Typographic, 778 F.2d at 1194. Generally, the questioning must occur in a context that is free from employer hostility, and the questioning must not itself be coercive. See Montgomery Ward & Co. v. NLRB, 377 F.2d 452, 456 (6th Cir.1967). Moreover, in determining the legality of a particular interrogation, we must bear in mind that the privilege of interviewing employees to discover relevant facts is a narrow one, and is “limited to the purpose of preparing the case for trial.” Surprenant Mfg. Co. v. NLRB, 341 F.2d 756, 762-63 (6th Cir.1965). As we have observed, the privilege: does not include the right to pry into matters of union membership, to discuss the nature or extent of union activity or to dissuade employees from joining or remaining members of a union. The cases recognize that the rule calls for" }, { "docid": "9821242", "title": "", "text": "outside building); Sturgis Newport Bus. Forms, Inc. v. NLRB, supra, 563 F.2d at 1257 (8 of 46 employees questioned); NLRB v. Birdsall Construction Co., 5 Cir. 1973, 487 F.2d 288, 291 (systematic questioning of employees who were called away from their work); NLRB v. Varo, Inc., supra, 425 F.2d at 298 (high-ranking officer, in his office and with secretary present and taking notes, questioned employees); and NLRB v. Camco, Inc., supra, 340 F.2d at 806-07 (systematic and intensive interrogation) with Mueller Brass Co. v. NLRB, 5 Cir. 1977, 544 F.2d 815, 821 (isolated interrogation when 2 out of 350 employees questioned). Fifth, the employees questioned responded in a candid and bold manner, raising the inference that they did not fear reprisal. Finally, the record is silent as to what purpose, if any, the interrogator had for asking the questions under discussion. Moreover, there is no testimony that any purpose for the questioning was offered the interrogated employees or that these employees were assured that no reprisals would be taken if they supported the union. Although an express statement of purpose as well as an express assurance of no reprisal may be desirable, see NLRB v. Camco, Inc:, supra, 340 F.2d at 804, such warning is not required when it is apparent from the circumstances, such as are present here, that the interrogation is for an innocent purpose and that the questions do not otherwise convey a veiled threat of reprisal. We therefore conclude that there is no substantial evidence that the innocuous and isolated questions asked under the circumstances present here have a tendency to be coercive. Accordingly we deny enforcement of the Board’s order insofar as it is based upon a finding of coercive interrogation. B. Solicitation of Employees to Campaign Against the Union. Employers are entitled to oppose unionization. Sturgis Newport Bus. Forms, Inc. v. NLRB, supra, 563 F.2d at 1257. Section 8(c) of the Act similarly provides that the “expressing of any views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice . if such expression contains no threat" }, { "docid": "6983161", "title": "", "text": "at 1262-63. In determining what an employee reasonably might have inferred from a communication, the Board must consider the employee’s economic dependence on the employer and that employee’s concomitant tendency to pick up intended implications that might be more readily dismissed by a more disinterested ear. See id. at 1263. Section 8(a)(3) makes it an unfair labor practice for an employer to discourage union activity by discriminating against employees with regard to hire or tenure of employment. See id. In evaluating an allegation under § 8(a)(3), the Board must ascertain the employer’s motivation in taking a particular action. See id. This determination often must be based on circumstantial evidence. See id. When an employee’s statutorily protected activity motivated a discharge, a violation has been established unless the employer demonstrates that it would have taken the same action in the absence of the employee’s protected activity. See id. We shall not displace the Board’s choice between two permissible views of the evidence, even though we may have decided differently had the matter been before us de novo. See id. D. Substantial Evidence Multi-Ad argues that the Board’s conclusions are not supported by substantial evidence. Multi-Ad, however, cannot overcome the deferential standard of review that we must afford the Board’s conclusions. Multi-Ad first challenges the Board’s determination that Multi-Ad coer-cively interrogated Mr. Steele on August 16 in violation of § 8(a)(1) of the Act. Whether an employer’s questioning of an employee is coercive depends on the factual context in which the questioning occurs. See NLRB v. Joy Recovery Tech. Corp., 134 F.3d 1307, 1313 (7th Cir.1998). The test is not whether coercion actually occurred, but only whether the employee perceived the employer’s actions to be coercive. See Great Lakes Warehouse, 239 F.3d at 890. Factors that ought to be considered in deciding whether a particular inquiry is coercive include the tone, duration, and purpose of the questioning, whether it is repeated, how many workers are involved, the setting, the authority of the person asking the question, and whether the company otherwise had shown hostility to the union. See NLRB v. Champion Labs.," }, { "docid": "10109727", "title": "", "text": "and whether he knew any other unit employees (i.e., election-eligible employees, not supervisors) who were involved in the Union or passing out cards. (J.A. 377.) These unwanted questions upset Jimenez so much that he returned to the office after leaving the meeting and “tore' up the document and threw it in the garbage.” (J.A. 376.) Then, approximately five days later, Jimenez’s supervisor again approached Jimenez while he was work ing and told him to meet with the lawyer in a private conference room. The lawyer told him that “he did not believe Jimenez’[s] answers during their first exchange and wanted to give him a second chance.” (J.A. 377.) He asked Jimenez why he wanted Woodcrest to unionize and whether certain supervisors had campaigned for the Union. Woodcrest argues that the Monica-Jimenez interrogation was found to be coercive solely because Monica asked Jimenez why he wanted a union at Woodcrest. But we disagree. The ALJ and the Board found the interrogation to be coercive based on the totality of the circumstances, properly applying the Bourne, factors. Woodcrest’s citations are off-point. Wood-crest cites Hughes & Hatcher, Inc. v. NLRB for the proposition that “[ijnterrogation of employees concerning their membership in the union, membership of fellow-employees, or the general activity of the union, absent interference or coercion, does not violate the Act.” 393 F.2d 557, 563 n. 4 (6th Cir.1968). However, the circumstances here were not so benign. Monica’s questioning of Jimenez regarding topics that Monica was purportedly not to inquire about, along with the accusation that Jimenez had not told the truth, crossed the line. Cf. NLRB v. Prof'l Tape Co., 422 F.2d 989, 990 (7th Cir.1970) (“This was not a mere inquiry to determine Union support. The continuous questioning of Hawkins and Okryesik suggested that the employees were being accused of lying about the union activities and in so doing, the Company created an atmosphere of antagonism toward the Union.”). Indeed, the ALJ and the Board found that the circumstances of Monica’s questioning, taken as a whole, “reasonably tend to interfere with the free exercise of employee rights under the Act”" }, { "docid": "5775318", "title": "", "text": "at the hearing, Berger replied that no reprisals were carried out against him for refusing to identify the card distributors. The relevant consideration, however, is not whether reprisals were actually taken, but whether the employer’s conduct was such as would tend to interfere with the free exercise of employee rights, NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946), or would reasonably induce fear of reprisal. Cf. Peerless of America, Inc., supra. The administrative law judge also found that neither Berger nor Hayes was either informed of any lawful purpose for the interrogation or assured that there would be no reprisal. Although these latter two findings alone would not establish a violation of section 8(a)(1), they are nonetheless important considerations because the absence or presence of such comments is .relevant to an understanding of the “total context of the surrounding circumstances.” As the Sixth Circuit noted in Hughes & Hatcher, Inc. v. NLRB, 393 F.2d 557, 563 (6th Cir. 1968), “In order to determine accurately whether the interrogation would reasonably have been coercive, it must be viewed and interpreted as the employee must have understood the questioning and its ramifications.” The Company also asserts that when dealing with the interrogation charges the Board impermissibly considered the next day’s discharge of Brady and Crabbe. We agree that the interrogation and discharge charges must be considered separately. The Board, however, could permissibly consider the nature of the information sought in relation to subsequent events. Not only did the interrogations appear to be seeking information on which to base later action against individual employees, Bourne, 332 F.2d at 48, but such action was taken the very next day. In sum, we find substantial evidence in the record as a whole to support the Board’s conclusion that the interrogations were violative of section 8(a)(1). B An employer violates sections 8(a)(3) and (1) of the Act if the discharge of an employee is motivated, at least in part, by anti-union considerations. Borek Motor Sales, Inc. v. NLRB, 425 F.2d 677, 680-81 (7th Cir.), cert. denied, 400 U.S. 823, 91 S.Ct. 45, 27" }, { "docid": "5775317", "title": "", "text": "1108, 1115 (7th Cir. 1973); Blue Flash Express, Inc., 109 N.L.R.B. 591, 593 (1954). The interrogation charge here focuses on the questioning of two employees by supervisory personnel in an attempt to discover the identity of those distributing union authorization cards. The Company argues that regardless of whether the five-factor test developed in Bourne v. NLRB or the more general test ■ stated in Hughes & Hatcher, Inc. v. NLRB is applied, the interrogations were merely innocuous and not coercive conduct. We do not agree. Despite the absence of a history of company hostility and discrimination, and the suggestion that the Company’s attempt to learn the identity of the organizers was for “informational” purposes, we agree with the Board that the questioning of the two employees, Berger and Hayes, was coercive interrogation and a violation of section 8(a)(1). The administrative law judge found that Berger’s refusal to reveal the identity of the distributors was the result of fear of reprisal. The Company attempts to refute that finding by noting that in response to a question at the hearing, Berger replied that no reprisals were carried out against him for refusing to identify the card distributors. The relevant consideration, however, is not whether reprisals were actually taken, but whether the employer’s conduct was such as would tend to interfere with the free exercise of employee rights, NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946), or would reasonably induce fear of reprisal. Cf. Peerless of America, Inc., supra. The administrative law judge also found that neither Berger nor Hayes was either informed of any lawful purpose for the interrogation or assured that there would be no reprisal. Although these latter two findings alone would not establish a violation of section 8(a)(1), they are nonetheless important considerations because the absence or presence of such comments is .relevant to an understanding of the “total context of the surrounding circumstances.” As the Sixth Circuit noted in Hughes & Hatcher, Inc. v. NLRB, 393 F.2d 557, 563 (6th Cir. 1968), “In order to determine accurately whether the interrogation would reasonably have been" }, { "docid": "11686913", "title": "", "text": "360 F.2d 205, 207 (2 Cir. 1966). Where, as here, there is no explicit threat, interrogation is lawful unless the circumstances indicate that coercion is implicit in the questioning. This court has set forth the relevant factors to be examined in determining whether under particular circumstances employer interrogation is inherently coercive. NLRB v. Firedoor Corp., 291 F.2d 328 (2 Cir.), cert, denied, 368 U.S. 921, 82 S.Ct. 242, 7 L.Ed.2d 136 (1961); Bourne v. NLRB, 332 F.2d 47 (2 Cir. 1964). These factors include whether there is a background of employer hostility and discrimination; whether the employer seeks information necessary to test a claimed majority or seeks to ferret out information most useful for purposes of discrimination, as when employees are asked to identify union supporters, compare NLRB v. Peerless Products, Inc., 264 F.2d 769, 83 A.L.R.2d 527 (7 Cir. 1959), with NLRB v. Syracuse Color Press, Inc., 209 F.2d 596 (2 Cir. 1954); whether the identity of the questioner and the place or method of interrogation lent the activity an aura of formality that added to its coercive tendency; and whether the reply was truthful so as to indicate an absence of felt intimidation, or evasive or false so as to indicate an effort by one intimidated to conceal his true allegiance. From the record in this case, including the questioning by Rienzo, So-beck and Torriere, it is evident that this activity barely meets the standards set out, but after careful scrutiny we are unable to say that the circumstances do not indicate any coercive tendency. While these respondents did not manifest the kind of pervasive hostility or lengthy record of unlawful practices that is sometimes found, it is clear that they opposed the union, and campaigned against it, and there was evidence to support the finding that they had violated the act by threatening plant closure. The information sought from Thorpe, Cocheo, Doce and Kuke was not needed by the employer for any legitimate purpose; it was useful only if the employer wanted to influence the employee’s choice in the election. The questions were in each case directed" }, { "docid": "2608412", "title": "", "text": "of his co-workers. An employer’s interrogation of its employees, however, is not unlawful per se, unless conducted with such anti union animus as to be coercive in nature. Higgins’ interrogation of Angus, not in itself threatening or coercive, would not violate Section 8(a) (1) unless it were conducted against a background of employer hostility and discrimination towards unionization, such as would induce in its employees a fear of reprisal for lawfully pursuing their union activities. Banner Biscuit Company v. N. L. R. B., 356 F.2d 765, 769-70 (8th Cir. 1966) ; N. L. R. B. v. Ritchie Manufacturing Company, 354 F.2d 90, 99 (8th Cir. 1965). Cf. N. L. R. B. v. Morris Novelty Co., Inc., 378 F.2d 1000 (8th Cir. June 19, 1967). The circumstances surrounding Higgins’ interrogation negative any inference of coercion. The questioning of Angus was not part of any employer plan of systematic intimidation of its employees, but at best was isolated and casual in nature. The questioning, moreover, was totally devoid of any coercive statements, which are usually characteristic of an unlawful interrogation. This isolated form of interrogation, we believe, was insufficient to violate the rights of Respondent’s employees under Section 8(a) (1). In summary, we believe that the Board’s finding of a coercive interrogation is not supported by substantial evidence in the record. We are not prepared, however, to accord similar protection for the more aggravated demeanor of Miss Fitch. Her conduct, we feel, inhibited the employees’ pursuit of their union activities. Miss Fitch attempted to verify on the Company’s behalf the names of those employees who had attended a previous union meeting. The evidence relating to this charge fully supports the finding that Angus and the three other employees to whom he disclosed the existence of the list of Union adherents were left with the clear impression that Respondent was keeping its employees’ union activities under surveillance. An impression of surveillance might well instill in the employee a fear of reprisal from the employer. Such conduct is violative of Section 8(a) (1) as it could inhibit the right of employees to pursue their" }, { "docid": "10109717", "title": "", "text": "8(a)(3) (and § 8(a)(1)), we will remand for the Board to consider these issues in the first instance. See United Dairy Farmers Coop. Ass’n v. NLRB, 633 F.2d 1054, 1069 (3d Cir.1980). Remand is appropriate because we are requiring the Board to modify its longstanding mode of analysis in order to comply with the Supreme Court’s equally longstanding precedent to the contrary. See United States v. Kikumura, 918 F.2d 1084, 1103 n. 23 (3d Cir.1990), overruled on other grounds by United States v. Fisher, 502 F.3d 293 (3d Cir.2007). B. The Interrogations Section 8(a)(1) of the NLRA also prohibits an employer from coercively interrogating its employees — that is, interrogating them in such a way as to “suggest[ ] to the employees that the employer may take action against them because of them pro-Union sympathies.” Frito-Lay, Inc. v. NLRB, 585 F.2d 62, 65 (3d Cir.1978); see also Graham Architectural Prods. Corp. v. NLRB, 697 F.2d 534, 537 (3d Cir.1983) (“An employer’s questioning becomes coercive and runs afoul of section 8(a)(1) when it ‘suggests to the employees that the employer may take action against them because of their pro-Union sympathies.’” (quoting Frito-Lay, 585 F.2d at 65)). Although “the questioning must reasonably have tended to coerce under the circumstances,” it need not have “actually had any coercive effect.” Graham Architectural, 697 F.2d at 537-38. “Whether an employer’s actions meet that test is a question of fact for the Board and its determinations are conclusive if supported by substantial evidence.” NLRB v. Armcor Indus., Inc., 535 F.2d 239, 242 (3d Cir.1976). As noted above, “substantial evidence” is a “highly deferential” standard of review. United Food & Commercial Workers Union, 506 F.3d at 1083. Here, three interrogations form the basis of the coercive interrogation charge. The participants in these three interrogations were: (1) certified nursing assistant Jeffrey Jimenez and company attorney James Monica; (2) certified nursing assistant Judith Dolcine and Assistant Director of Nursing Ansel Vijayan; and (3) licensed practical nurse Donna Duggar and supervisor Janet Lewis. The ALJ found that each of these interrogations was coercive. He explained that “[t]he applicable test for" }, { "docid": "12775762", "title": "", "text": "Substantial evidence indicates that Aaron Rosenberg was the highest ranking officer in the company, that employees Hill and Diffenbach supplied untruthful answers to the May 10 questioning, and that an atmosphere of hostility prevailed during the interrogation. Furthermore, the interrogation here can be regarded as being more coercive than the questioning proscribed in NLRB v. Solboro Knitting Mills, Inc., 572 F.2d 936, 939-40 (2d Cir. 1978), cert. den. 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978). In Solboro the group questioning consisted of one inquiry as to whether the employees wanted the union, which was greeted by silence. By contrast, the questioning on May 19 involved an inquiry into pro-union sentiment and inquiry into the reasons for that sentiment. We find that the Administrative Law Judge’s finding of coercion is supported by the evidence. The promises and grant of a benefit (the wage and health plan offers) were not expressly made dependent upon the employees’ rejection of the Union. Nevertheless, the timing of those offers indicated a coercive purpose and effect. See, e. g., NLRB v. Colonial Knitting Corp., 464 F.2d 949 (3d Cir. 1972) (granting of wage increases on eve of certification election was coercive). The company failed, in the hearings before Judge Miller, to justify the timing of the offer of benefits, as it was called upon to do to avoid the inference of anti-union action. See NLRB v. Styletek, 520 F.2d 275 (1st Cir. 1975). The evidence in the record supports Judge Miller’s conclusion that these offers were made by Aaron Rosenberg on May 19. Timing is also the key ingredient in the threats to hire new employees and to change the job assignments of Hill and Hood. Given the circumstances, the employees could reasonably infer that these threats were directed towards their decision to join the Union. See NLRB v. Kaiser Agricultural Chemicals, 473 F.2d 374, 381 (5th Cir. 1973). Furthermore, the removal of employee Hill from the driving assignment on the large truck at the time of the Union confrontation violated § 8(a)(3). The timing and circumstances of the reassignment support Judge Miller’s" }, { "docid": "9821238", "title": "", "text": "if we might reach a contrary result in deciding the case de novo. Sturgis Newport Bus. Forms, Inc. v. NLRB, supra, 536 F.2d at 1256, and cases cited therein. The ALJ concluded that in conversing with its employees, Delco was guilty of coercive interrogation, requesting employees to campaign against the Union, and threatening to discontinue jobs and existing company benefits. Even if we accept the ALJ’s credibility resolutions, we must nonetheless disagree with his and the Board’s conclusion that a Section 8(a)(1) violation has been committed. A. Coercive Interrogation It is well established in this Circuit that interrogation of employees is not illegal per se. NLRB v. Weingarten, Inc., 5 Cir. 1964, 339 F.2d 498, 500. “To fall within the ambit of § 8(a)(1), either the words themselves or the context in which they are used must suggest an element of coercion or interference.” Id. and cases cited therein. The test of whether questioning is unlawful is whether such questioning tends to be coercive, not whether the employees are, in fact, coerced. Cagle’s, Inc. v. NLRB, 5 Cir. 1979, 588 F.2d 943, 948 n. 3; NLRB v. Pope Maintenance Corp., 5 Cir. 1978, 573 F.2d 898, 904. This Circuit has employed “widely accepted criteria” in determining whether the interrogation in question tends to be coercive: (1) the history of the employer’s attitude toward its employees; (2) the type of information sought or related; (3) the company rank of the questioner; (4) the place and manner of the conversation; (5) the truthfulness of the employee’s responses; (6) whether the employer had a valid purpose in obtaining the information; (7) if so, whether this purpose was communicated to the employee, and (8) whether the employer assures employees that no reprisals will be taken if they support the union. NLRB v. Aero Corp., 5 Cir. 1978, 581 F.2d 511, 514; Sturgis Newport Bus. Forms, Inc. v. NLRB, supra, 563 F.2d at 1256; NLRB v. Camco, Inc., 5 Cir. 1965, 340 F.2d 803, cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339. See NLRB v. Pope Maintenance Corp., supra, 573 F.2d at" }, { "docid": "6983162", "title": "", "text": "novo. See id. D. Substantial Evidence Multi-Ad argues that the Board’s conclusions are not supported by substantial evidence. Multi-Ad, however, cannot overcome the deferential standard of review that we must afford the Board’s conclusions. Multi-Ad first challenges the Board’s determination that Multi-Ad coer-cively interrogated Mr. Steele on August 16 in violation of § 8(a)(1) of the Act. Whether an employer’s questioning of an employee is coercive depends on the factual context in which the questioning occurs. See NLRB v. Joy Recovery Tech. Corp., 134 F.3d 1307, 1313 (7th Cir.1998). The test is not whether coercion actually occurred, but only whether the employee perceived the employer’s actions to be coercive. See Great Lakes Warehouse, 239 F.3d at 890. Factors that ought to be considered in deciding whether a particular inquiry is coercive include the tone, duration, and purpose of the questioning, whether it is repeated, how many workers are involved, the setting, the authority of the person asking the question, and whether the company otherwise had shown hostility to the union. See NLRB v. Champion Labs., Inc., 99 F.3d 223, 227 (7th Cir. 1996). We also consider whether questions about protected activity are accompanied by assurances against reprisal and whether the interrogated worker feels constrained to lie or give noncommittal answers rather than answering truthfully. See id. Substantial evidence supports the Board’s conclusion that management coercively interrogated Mr. Steele on August 16. The closed-door meeting was conducted in a manager’s office by Heathcoat and Ireland, two people who had authority to fire Mr. Steele. The two managers questioned Mr. Steele regarding why he would want to bring a union into the company. See Beverly Cal. Corp., 227 F.3d at 835 (holding that an employer may not probe directly or indirectly into an employee’s reasons for supporting a union). Moreover, Ireland immediately thereafter asked Mr. Steele about his own career advancement and arranged an interview for a maintenance position, even though no such opening existed. The managers did not assure Mr. Steele that reprisals would not be taken against him for his answers, adding to the potentially coercive nature of the inquiry." }, { "docid": "6983163", "title": "", "text": "Inc., 99 F.3d 223, 227 (7th Cir. 1996). We also consider whether questions about protected activity are accompanied by assurances against reprisal and whether the interrogated worker feels constrained to lie or give noncommittal answers rather than answering truthfully. See id. Substantial evidence supports the Board’s conclusion that management coercively interrogated Mr. Steele on August 16. The closed-door meeting was conducted in a manager’s office by Heathcoat and Ireland, two people who had authority to fire Mr. Steele. The two managers questioned Mr. Steele regarding why he would want to bring a union into the company. See Beverly Cal. Corp., 227 F.3d at 835 (holding that an employer may not probe directly or indirectly into an employee’s reasons for supporting a union). Moreover, Ireland immediately thereafter asked Mr. Steele about his own career advancement and arranged an interview for a maintenance position, even though no such opening existed. The managers did not assure Mr. Steele that reprisals would not be taken against him for his answers, adding to the potentially coercive nature of the inquiry. Further, this meeting was conducted after company managers had expressed uneasiness over union activity. These circumstances are more than enough evidence to sustain the Board’s findings. Multi-Ad next challenges the Board’s finding that it made an implied promise of benefits by asking Mr. Steele how he could help his own situation and by arranging the job interview. An employer violates the Act when it interferes with the employees’ exercise of their rights to organize by soliciting grievances when such solicitation is accompanied by implied promises of benefits specifically aimed at deterring union activity. See 6 West Ltd. v. NLRB, 237 F.3d 767, 782 (7th Cir.2001). Here, Ireland asked Mr. Steele why he wanted to form a union and then asked Mr. Steele how Mr. Steele could improve his own situation. Mr. Steele expressed an interest in a maintenance position, and Ireland arranged for an interview immediately, even though there were no such openings. The context in which this occurred is significant. Because the managers made this overture during a conversation about the need for a" }, { "docid": "19838105", "title": "", "text": "was no evidence that the employee could have believed Dillon, a low-level supervisor, had authority to speak for the Company. We hold that the Board should not have considered this single, isolated statement in determining whether the Company had coerced its employees. Excluding the plant-closing threat, the other conversations pale into insignificance. They involved only three employees out of 455. They occurred in the employees’ work areas between persons in daily contact and were casual and friendly. There was no hint of reprisal for Union support. Only one of the indicia used in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), to identify coercive interrogations is present: a history of employer hostility and discrimination. But an interrogation not coercive in itself “does not become coercive because the employer is guilty of other unfair practices.” NLRB v. Dorn’s Transportation Co., 405 F.2d 706, 714 (2d Cir. 1969). For a nonthreatening conversation to violate Section 8(a) (1), there must be circumstances which would reasonably induce fear of reprisal. NLRB v. McCormick Steel Co., 381 F.2d 88 (5th Cir. 1967). We find no circumstances in this case to support a finding that the interrogations produced fear in any of the three employees. The conversations were not coercive within the meaning of Section 8(a) (1). We therefore refuse to enforce Paragraphs 1(b) and (c) of the Board’s order. The first two paragraphs of the “Notice to Employees” should be deleted. Enforced as modified. . 29 U.S.C. § 158(a): “It shall be an unfair labor practice for an employer— . . . (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. . ” . Lake City Foundry Co. v. NLRB, 432 F.2d 1162 (7th Cir. 1970); Boyle’s Famous Corned Beef Co. v. NLRB, 400 F.2d 154 (8th Cir. 1968); NLRB v. Coca-Cola Bottling Co., 333 F.2d 181 (7th Cir. 1964); NLRB v. Magic Slacks, Inc., 314 F.2d 844 (7th Cir. 1963); NLRB v. Post Publishing Co., 311 F.2d 565 (7th Cir. 1962). . 29 U.S.C. § 152(5): “The term ‘labor" }, { "docid": "10109728", "title": "", "text": "Woodcrest’s citations are off-point. Wood-crest cites Hughes & Hatcher, Inc. v. NLRB for the proposition that “[ijnterrogation of employees concerning their membership in the union, membership of fellow-employees, or the general activity of the union, absent interference or coercion, does not violate the Act.” 393 F.2d 557, 563 n. 4 (6th Cir.1968). However, the circumstances here were not so benign. Monica’s questioning of Jimenez regarding topics that Monica was purportedly not to inquire about, along with the accusation that Jimenez had not told the truth, crossed the line. Cf. NLRB v. Prof'l Tape Co., 422 F.2d 989, 990 (7th Cir.1970) (“This was not a mere inquiry to determine Union support. The continuous questioning of Hawkins and Okryesik suggested that the employees were being accused of lying about the union activities and in so doing, the Company created an atmosphere of antagonism toward the Union.”). Indeed, the ALJ and the Board found that the circumstances of Monica’s questioning, taken as a whole, “reasonably tend to interfere with the free exercise of employee rights under the Act” and were coercive. (J.A. 374.) Given the substantial evidence standard, we are not inclined to disturb this conclusion. Moreover, the Monica-Jimenez interrogation has parallels to an interrogation discussed in Graham Architectural, which we held was unlawful. There, the interrogation of David Reisinger by Michael Lehr was “not part of an ordinary casual conversation; rather, Lehr specifically requested Reisinger to come to his office.” Graham Architectural, 697 F.2d at 538. The supervisor also “indicated that he had prior knowledge” of the employee’s union activities. Id. Furthermore, that interrogation involved two mitigating factors that are not present here: the individuals’ “friendship and the occurrence of the conversation in an open plant area.” Id. Yet we, nevertheless, enforced the Board’s order. Id. at 543. Here, Jimenez did not know Monica, and the interrogation occurred first in Jimenez’s boss’s office and then in a private conference room. The Monica-Jimenez interrogation was also similar to a second interrogation found to be unlawful in Graham Architectural — the interrogation of Diana Oberdick by her supervisor, Robert Reichard— which also involved “not" }, { "docid": "3257854", "title": "", "text": "he suspected other employees of being union adherents, but not Purscell. The Administrative Law Judge found that none of these instances of interrogation constituted a § 8(a)(1) violation. He reasoned that the interrogation of Purscell could not have had a coercive effect because Purscell had previously voluntarily revealed his union affiliation to a company foreman. With respect to Cone and Sullivan, the Administrative Law Judge concluded that “such isolated interrogation in a campaign marked by an apparent general willingness of employees to identify themselves openly for the Union cannot suffice ... to support a Section 8(a)(1) finding.” Disagreeing with the conclusions of. the Administrative Law Judge, the Board found that these instances of interrogation were violative of § 8(a)(1). The Board concluded that the purpose and effect of the interrogation of Purscell was to intimidate him in his pursuit of protected union activity. As to Cone and Sullivan, the Board found that the sole purpose for questioning these men was to find out the extent of union support among employees following the first employee union meeting of April 17 and that this interrogation was coercive in nature. In determining whether the Company’s interrogation of these men was unlawfully coercive, several factors should be considered: (1) the history of the Company’s attitude toward its employees; (2) the type of information sought; (3) the rank of the interrogator in the Company hierarchy; (4) the place and manner of the interrogation; and (5) the truthfulness of the employee’s responses. NLRB v. Varo, Inc., 425 F.2d 293, 298 (5th Cir. 1970); NLRB v. Camco, Inc., 340 F.2d 803, 804 (5th Cir. 1965); cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965); Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). In addition, we may consider such factors as: (1) whether the Company had a valid purpose in obtaining information concerning the union’s strength; (2) whether the Company communicated this purpose to the employees; and (3) whether the Company assured the employees that no reprisals would be taken. NLRB v. Varo, supra; NLRB v. Camco, Inc., supra. Sullivan and Cone were" }, { "docid": "5998114", "title": "", "text": "that the Center violated section 8(a)(1) of the Act by polling employees regarding their grievances and creating the impression that such grievances would be satisfied. 3. Interrogation of Employees Substantial evidence also supports the Board’s finding that the Center violated section 8(a)(1) by interrogating employees concerning their union activities. Such questioning, though not per se violative of the Act, is prohibited by section 8(a)(1) if accompanied by coercion, threat, or restraint. Coors Container Co. v. NLRB, 628 F.2d 1283, 1289 (10th Cir.1980); Groendyke Transport, Inc. v. NLRB, 530 F.2d 137, 144 (10th Cir.1976). The test is not whether employees were actually coerced, but whether the questioning tended to be coercive. Hedstrom Co., 558 F.2d at 1143 n. 13; NLRB v. Camco, Inc., 340 F.2d 803, 804 n. 6 (5th Cir.1965). A violation is established “if the questions asked, when viewed and interpreted as the employee must have understood the questioning and its ramifications, could reasonably coerce or intimidate the employee with regard to union activities.” NLRB v. Rich’s Precision Foundry, Inc., 667 F.2d 613, 624 (7th Cir.1981). Here the record discloses numerous instances in which the Center’s supervisory personnel interrogated employees • about their union activities. In mid-July of 1979, the Center’s assistant administrator of nursing, Pamela Van Genderen, summoned RN Lauren Hammond to her office to discuss a report that Hammond had solicited other employees regarding representation matters. Van Genderen testified she informed Hammond that the National Labor Relations Act did not permit active solicitation on work time in patient care areas. She advised Hammond that if there were any further incidents, they “would have to talk about it.” Rec., vol. I, at 46. According to Hammond, she told Van Genderen that she was not trying to organize the nurses and Van Genderen replied “I would like to know what you’re trying to talk to them about.” Id. at 357. Hammond also testified that Van Genderen warned her that if she were setting herself up as a representative of the union in an attempt to organize, she might be putting her job in jeopardy. It is undisputed that Hammond" }, { "docid": "14813240", "title": "", "text": "for the inquiry as two factors indicative of coercion. Although these factors are also present here, they are outweighed by other circumstances indicating that the statement did not tend to restrain the employee. The inquiries in Hedstrom were made in an environment of serious unfair labor practices by the company. There was no such background behind the inquiry of Stambaugh. See Delco-Remy Div., General Motors Corp. v. NLRB, 596 F.2d 1295, 1311 (5th Cir.1979) (assurance of no reprisals unnecessary where it is apparent the interrogation is for an innocent purpose and the questions convey no veiled threat of reprisal). . We believe the rationale of J.K. Electronics, Inc. d/b/a Wesco Elec. Co., 232 N.L.R.B. 479, 482 (1977) applies to this case. In Wesco, the Board found no violation of the Act because the supervisor withdrew the question into the employee’s union sentiments before the employee could answer. In the instant case, the Board distinguished Wesco on the ground that Nash “did not withdraw his question but simply conceded, when challenged, that Stambaugh was correct in saying she did not have to answer.” We fail to appreciate the significance to this distinction. The important point is that Nash clearly communicated to Stambaugh that she need not respond to the inquiry. . See Midwest Stock Exch., Inc. v. NLRB, 635 F.2d 1255, 1268 (7th Cir.1980). . In rejecting the ALJ’s findings, the Board stated that “an inquiry into an employee’s views toward a union, even in the context of assurances against reprisals, reasonably tends to interfere with the free exercise of an employee’s Section 7 rights.” To the extent this suggests the Board’s position is that an inquiry into an employee’s views is per se coercion and a showing of coerciveness is not required, we specifically held otherwise in K & K Gourmet Meats, supra. . Regrettably, the conclusory nature of the Board’s opinion in this case makes it especially difficult for us to ascertain the basis for the Board’s findings that the inquiries to Stambaugh, Jones, and Shaeffer were coercive. . In First National Bank of Pueblo, two high officials of" } ]

[ { "docid": "18402620", "title": "", "text": "the plaintiff for the judge to permit the plaintiff’s attorney to argue to the jury that the duty of the tug to maintain a proper lookout was not adequately performed, because the only lookout was the master, and then to charge the jury only in general terms on the subject without calling their attention to the circumstances stressed by the attorney. Thereby the great importance of the proper performance of the essential duty to maintain a lookout was insufficiently shown while at the same time, in other parts of the charge, the burden upon the plaintiff to show a causal connection between the lookout maintained and the accident was expressly emphasized. For this reason we think the case should be remanded for a new trial. It does not follow that the lookout instruction requested by the plaintiff should have been granted in the form in which it was presented to the court. It is true that in numerous cases it has been held that a vessel in motion in a traveled area should have a lookout at the location on the vessel, usually in the bow, best suited to see and hear an approaching object and that the lookout should have no other duties, particularly such as those which devolve upon the pilot or others on the bridge. See the authorities assembled in Osaka Shosen Kaisha, Ltd. v. The Elene, D.C.Md., 190 F.Supp. 201. Examination of these decisions, however, reveals that these rules have been laid down with respect to vessels of considerable size whose navigators are usually occupied with the performance of various other exacting duties, and so it is generally held that an arbitrary rule cannot be applied to every case and that the question of the sufficiency of the lookout in any instance is one of fact to be realistically resolved under the attendant circumstances, bearing in mind that the performance of lookout duty is an inexorable requirement of prudent navigation. Thus in Bradshaw v. The Virginia, 4 Cir., 176 F.2d 526, 529, and in The Pocomoke, D.C.E.D.Va., 150 F. 193, 197, it is indicated that the" } ]

[ { "docid": "17957128", "title": "", "text": "the steamship had been proceeding at a slower rate of speed, the collision could doubtless have been avoided by the reversal of her engines. Tho removal of the lookouts from the best positions for seeing ahead imposed a duty upon the steamship to slacken her speed, so that she would be under command and could reverse in time to avoid a collision with a sailing vessel ahead of her, which could be seen without a light exhibited astern. Full speed under the circumstances was inconsistent with the duty of the steamship to stop if there should be danger, and there was danger here which doubtless could have been seen in time to avoid it if the lookouts had not been removed from their proper stations. Their removal necessitated the precaution, of reducing speed. The Java, 14 Blatchf. 524, Fed. Cas. No. 7,233.” In the Java, it was found that the sailing vessel had her regulation lights set and burning; besides the heavy head sea, there were occasional showers and some mist and the view of lookouts from the bridge was interfered with by a fore trysail. We are unable to concur in this conclusion of the District Judge because it requires the steamer to maintain a speed so low as to avoid collision with other vessels which may be navigating without displaying lights. This, we think, lays a burden upon navigating vessels not warranted by the rules or by authority. The case of the Sarmatian is closely parallel. She was proceeding at her usual speed in the open sea. The night was dark, but lights when displayed could easily be seen; she had a full watch on deck attending to her duties. The Circuit Court held, affirming the District Court: “She was not bound to slacken her speed until there was apparent danger [The Scotia, 14 Wall. 170, 20 L. Ed. 822], and she had the right to act on the belief that every vessel she approached would give such notice as the local usages of the place, or the general rules of the sea required. * * * Under" }, { "docid": "18402625", "title": "", "text": "v. The Edna M. Matton, 2 Cir., 255 F.2d 380. In our view the violation of the duty, although a serious one, is not a statutory fault with the extreme consequences imposed by The Pennsylvania rule. The purpose of Article 29, which refers to the negligence of a vessel to keep a proper lookout, was not to make an addition to the statutory rules of navigation theretofore set out, but to make certain that compliance with those rules would not excuse the failure of the ship to comply with the other well known rules of good seamanship which exist irrespective of statute. We do not, however, minimize the duty of a vessel to have a proper lookout. On the contrary, we hold that the omission to perform this duty is so grave a default as to give rise to a strong inference that it contributed to the accident and to impose upon the vessel the heavy burden to show by clear and convincing evidence that it did not so contribute. Such a holding is surely justified in view of the more drastic rule laid down by experienced admiralty courts as a necessary safeguard for careful navigation. Accordingly, the jury should have been instructed in the pending case that if they found that the lookout duty was not properly performed by the tug, the burden rested upon it to exculpate itself from liability. The failure to give such a charge was particularly prejudicial in the present case, because the attention of the jury was not specifically called by the judge to the fact that the tug did not have an independent lookout, and because the instruction actually given was in conflict with the argument which plaintiff’s attorney had been allowed to present to the jury. The judgments of the District Court are reversed and the case is remanded for new trial. Reversed and remanded. . With respect to other violations of the Inland Rules by the two vessels, the judge called the attention of the jury to the failure of the tug to sound its whistle when approaching Marker 73 south" }, { "docid": "3203089", "title": "", "text": "vessels. Nonetheless, both men testified that they had seen escort tugs running close alongside tankers many times before, and saw no cause for alarm. As the Sea King came closer and closer, Captain Semler aboard the Allegiance decided that the vessels’ proximity exceeded his comfort zone. Although later testifying that he did not see any risk of collision, Captain Semler radioed Captain Nekeferoff aboard the Sea King, inquiring, “Don, are you ok?” Captain Nek-eferoff responded affirmatively. Shortly after the radio communication, the Allegiance and the Sea King collided, with the tug boat pushed along by the tanker’s bow and nearly capsizing as she rolled to the tanker’s starboard side while heeling to port. About halfway down the tanker’s side, the Sea King righted itself as the tanker sailed past. The exact dynamics of the collision were disputed. Crowley presented expert testimony that the two vessels gradually converged until the Allegiance struck the Sea King almost directly from behind. Maritrans presented testimony that the Sea King veered suddenly to starboard, into the path of the Allegiance. At trial, each side attributed fault entirely to the other, relying in large part on the COLREGS. The COLREGS provide a “universal system of sea traffic rules” ap plicable to vessels in international waters. William Tetley, International Maritime and Admiralty Laio 237 (2002). Originally adopted by treaty under the auspices of the International Maritime Organization in 1972, the COLREGS have since been incorporated into the national law of “every shipping nation in the world.” Id. These rules apply to “all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels.” Rule 1(a). Crowley argued that Maritrans violated four provisions of the COLREGS: Rule 5, which establishes a duty to maintain a lookout; Rule 8, which establishes a duty to avoid collision; Rule 13, which makes an overtaking vessel responsible for avoiding collision; and Rule 34, which requires vessels in sight of each other to give a signal when changing course. Maritrans countered that Crowley violated Rule 5 by failing to maintain a proper lookout. Mar-itrans also maintained that Crowley reasonably" }, { "docid": "13174452", "title": "", "text": "in flagrant violation of Rules 15 and 16, as the court found. See also Rule 8(a) (“Any action to avoid collision shall ... be positive, made in ample time and with due regard to good seamanship.”). The Sea Fever was guilty of two more specific violations of the rules as well: it did not exhibit running lights, see Rule 23(a), and, as appellant admits, it did not signal either its port or starboard turns, see Rule 34(a). The question remains whether the John David was also at fault. She was the privileged vessel, her running lights were indisputably operational, and, accepting Anderson’s testimony as the court was entitled to do, she maintained her speed and course at all times. Appellant charges, however, that the John David was nonetheless negligent in failing 1) to maintain a proper lookout, 2) to sound a danger signal, and 3) to take avoiding action. We deal with each of these in turn. The International Rules require that “[e]very vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.” Rule 5. Appellant claims that as a matter of law a “proper\" lookout is one as far forward and low down as possible, with no other duties. See R. Farwell, The Rules of the Nautical Road ch. 10. There is some degree of support for this proposition in the case law, although usually in different circumstances involving larger vessels. See, e.g., Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790 (5th Cir. 1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1488, 55 L.Ed.2d 517 (1978); In re Flota Mercante Grancolombiana, S.A., 440 F.Supp. 704, 715-16 (S.D.N.Y.1977). While we do not dispute that this would be the safest arrangement, we decline to hold that so onerous and unrealistic a requirement is imposed as a matter of law on small fishing vessels with limited crews running in circumstances such as these. The adequacy of the lookout" }, { "docid": "545044", "title": "", "text": "did not pass at such speed that danger would result from her suction or swells and he is responsible for their effects upon innocent vessels.” Id. at 674. The court then stated that the injury to the fishing boat from swells established a prima facie ease against the steamship: “And since she was the moving vessel she must exonerate herself from blame by showing that it was not in her power to prevent the injury by adopting any practical precautions.” Id. Therefore, Defendants may rebut the presumption of negligence by offering proof of reasonable care under the circumstances, thereby absolving themselves of fault. 6. Plaintiff argues that Defendants failed to maintain a proper lookout, contributing to the cause of the accident. The duty to maintain a proper lookout in inland waters such as Charleston Harbor is imposed by Rule 5 of the Uniform Navigation Rules, Title 33 U.S.C. § 2005. Inland Rule 5 requires that “every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and the risk of collision.” Id.; Schumacher v. Cooper, 850 F.Supp. 438 (D.S.C.1994). 7. As the court stated in Anthony v. International Paper Co., 289 F.2d 574 (4th Cir.1961), “the question of the sufficiency of the lookout in any instance is one of fact to be realistically resolved under the attendant circumstances, bearing in mind that the performance of lookout duty is an inexorable requirement of prudent navigation.” Id. at 580. If a vessel has not properly performed its lookout duty, the burden rests on that vessel to exculpate itself from liability. Id. at 581. 8. Plaintiff argues that the MAYA failed to maintain a proper lookout in this case because the designated lookout was posted on the ship’s bridge and not on the bow. However, the court notes that there is no requirement under Inland Rule 5, or the case law construing that rule, requiring the posting of a lookout at a specific location. Rather, the" }, { "docid": "22236493", "title": "", "text": "expounded by the decisions of this court. Two objections are made to the master, as lookout, even admitting that he was on deck, and they are both well taken. Admission of the appellant is, that the master was the officer of the deck, and that he had charge of navigating the vessel, and the proofs are satisfactory that if he was on deck at all at that time, he was in the wheel-house with the man at the wheel. Steamers are required to have constant and vigilant lookouts stationed in proper places on the vessel, and charged with the duty for which lookouts are required, and they must be actually employed in the performance of the duty to which they are assigned. They must be persons of suitable experience, properly stationed on the vessel, and actually and vigilantly employed in the performance of that duty. Proper lookouts are competent persons other than the master and helmsman, properly stationed for that purpose, on the forward part of the vessel; and the pilot-house in the night time, especially if it is very dark,, and the view is obstructed, is not the proper place. Lookouts stationed in positions where the view forward or on the side to which they are assigned, is obstructed, either by the lights, sails, rigging, or spars of the vessel, do not constitute a compliance with the requirement of the law; and in general, elevated positions, such as the hurricane deck, are not so favorable situations as those more usually selected on the forward part of the vessel, nearer the stem. Persons stationed on the forward deck are nearer the water-line, and consequently are less likely to overlook small vessels,, deeply laden, and more readily ascertain their exact course and movement. Applying these rules to the present ease, it is clear that the propeller did not have any proper lookout, and it will be sufficient to say that we adhere to those decisions without abatement or qualification. 2. Second objection urged by the appellee is, that the propeller did not show the signal lights required by law. Proper signal" }, { "docid": "18722573", "title": "", "text": "is that “[t]he lookout rule is not a statutory requirement within the purview of The Pennsylvania rule which would shift the burden of proof.” In re White Cloud, 813 F.2d at 1518 (original emphasis) (quoting Marport, 771 F.2d at 1218 n. 2 (citing Anthony v. International Paper Co., 289 F.2d 574, 581 (4th Cir. 1961))). We reject this contention. The discussion in White Cloud is not dispositive of this issue. The language in Marport, 771 F.2d at 1218 n. 2, is dicta, and the decision of the Fourth Circuit in Anthony was based not on the 1972 COLREGS (which were not yet in force), but on the Inland Rules of Navigation, 33 U.S.C.A. § 221 (Rule 29) (later repealed), which did not make posting a lookout an affirmative duty. Anthony, 289 F.2d at 577. Rule 5 of the 1972 COLREGS provides that “[ejvery vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.” 33 U.S.C.A. foil. § 1602, Rule 5. There is no question that posting a lookout is now a statutory duty. This is the rule prevailing in other circuits. The statement in Anthony that posting a lookout does not constitute a statutory rule under the Inland Rules of Navigation, 289 F.2d at 581, has been contradicted by three other circuits. Allied Chem. Corp. v. Hess Tankship Co., 661 F.2d 1044, 1053 (5th Cir. Unit A Nov. 1981); Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1159-60 (2d Cir.1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1499, 59 L.Ed.2d 772 (1979); First Nat’l Bank of Chicago v. Material Serv. Corp., 544 F.2d 911, 918 (7th Cir.1976) (concerning Great Lakes Rules). Moreover, the Supreme Court said in The Ariadne, 80 U.S. (13 Wall.) 475, 20 L.Ed. 542 (1871), that: The duty of the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend. A moment’s negligence on" }, { "docid": "7828809", "title": "", "text": "all on the bridge and have so testified. Signals were given when the two vessels were in close proximity. The signals of the Buena Vista seem not to have been heard or the lights to have been seen by anyone on the Lennen until immediately before the accident. A fundamental rule of admiralty is that a lookout must be kept on all vessels so that a collision may be prevented even with those vessels which are violating the rules of navigation. Delaware, L. & W. R. Co. v. Central R. Co. of New Jersey, 2 Cir., 238 F. 560. Even though a vessel be a privileged vessel under one rule, yet it may also be at fault for not keeping a proper lookout under Article 29. The J. W. Wonson, 2 Cir., 239 F. 857. To constitute a compliance with the requirements of law, the lookouts must be persons of suitable experience, properly stationed on the vessel and actually and vigilantly employed in the performance of that duty; and for a failure in either of these particulars the vessel and her owners may be responsible. The Ogdensburgh, 62 U.S. 548, 21 How. 548, 16 L.Ed. 211; The Colorado, 91 U.S. 692, 699, 23 L.Ed. 379. The Lennen, a commercial fishing boat, carried a fishing crew and certain persons having to do with the operation of the vessel. Lawson, described as “mate of the nets,” had been asked to look out for the buoys. His location was somewhat indefinite except that he seems to have been in or near the pilot house. The only other person answering to any description of a lookout was one Frank Henderson, a young colored man and on his first trip and who, at the time, was sitting down in the pilot house. As said in The New York, 175 U. S. 187, 20 S.Ct. 67, 44 L.Ed. 126, an unexplained failure to see or to hear what should have been seen or heard is evidence of a defective lookout. The force of presumption of a defective lookout on the Lennen is strengthened by two facts:" }, { "docid": "14437837", "title": "", "text": "past. The exact dynamics of the collision were disputed. Crowley presented expert testimony that the two vessels gradually converged until the Allegiance struck the Sea King almost directly from behind. Maritrans presented testimony that the Sea King veered suddenly to starboard, into the path of the Allegiance. At trial, each side attributed fault entirely to the other, relying in large part on the COLREGS. The COLREGS provide a “universal system of sea traffic rules” applicable to vessels in international waters. William Tetley, International Maritime and Admiralty Law 237 (2002). Originally adopted by treaty under the auspices of the International Maritime Organization in 1972, the COLREGS have since been incorporated into the national law of “every shipping nation in the world.” Id. These rules apply to “all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels.” Rule 1(a). Crowley argued that Maritrans violated four provisions of the COLREGS: Rule 5, which establishes a duty to maintain a lookout; Rule 8, which establishes a duty to avoid collision; Rule 13, which makes an overtaking vessel responsible for avoiding collision; and Rule 34, which requires vessels in sight of each other to give a signal when changing course. Maritrans countered that Crowley violated Rule 5 by failing to maintain a proper lookout. Maritrans also maintained that Crowley reasonably should have investigated the risks stemming from Captain Nekeferoffs history of alcoholism and health problems, conditions that appeared to be related to a temporary loss of situational awareness shortly before and during the collision. The district court credited Maritrans’ arguments, finding that because the two vessels were operating according to agreed maneuvers, Rules 8 and 13 of the COLREGS did not apply. To reach this decision, the district court invoked Rule 2, which provides that “[i]n construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.” Rule 2(b). Although noting that the plain language of the" }, { "docid": "3456322", "title": "", "text": "243 F. 801, 805. He should not be stationed on the bridge. Griffin on Collision, p. 273. A lookout must use his ears, as well as his eyes, and must report what he hears as well as what he sees. The Felix Taussig, 9 Cir., 1925, 5 F.2d 612, 615. If a ship fails to have a lookout, the burden is upon that ship to show that this failure did not contribute to the collision. The Madison, 2 Cir., 1918, 250 F. 850, 852. The burden is on the offending vessel to show that her deficiency could not have contributed, or at all events did not contribute, to the collision. Griffin on Collisions, p. 283. “Every doubt as to the performance of the duty, and the effect of non-performance, should be resolved against the vessel sought to be inculpated until she vindicates herself by testimony conclusive to the contrary.” The Ariadne, 1871, 13 Wall. 475, 80 U.S. 475, 479, 20 L.Ed. 542. The rule has been stated by Griffin as follows: “ * * * if the vessel fails in her duty as to lookout, the burden is on her to show her freedom from fault; but, if it appears that her navigators in fact had all the information which a proper lookout could have given, or that their navigation was just what it ought to have been if they had had such information, the failure in lookout will be held a non-contributory fault.” Griffin on Collision, p. 263. In my opinion, a lookout at the bow of the Bergechief would have been better able to determine the nature and direction of the signals coming from the Burgan than were those on the Bergechief’s bridge. Had the Bergechief correctly interpreted the short signal sounded by the Burgan at 8:26 or 8:27 to indicate that she was turning to starboard, the Bergechief would have had an opportunity to reverse her engines about two minutes prior to the time she actually did so. Under these circumstances, the failure to maintain a bow lookout constituted negligence on the part of the Bergechief and" }, { "docid": "545045", "title": "", "text": "means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and the risk of collision.” Id.; Schumacher v. Cooper, 850 F.Supp. 438 (D.S.C.1994). 7. As the court stated in Anthony v. International Paper Co., 289 F.2d 574 (4th Cir.1961), “the question of the sufficiency of the lookout in any instance is one of fact to be realistically resolved under the attendant circumstances, bearing in mind that the performance of lookout duty is an inexorable requirement of prudent navigation.” Id. at 580. If a vessel has not properly performed its lookout duty, the burden rests on that vessel to exculpate itself from liability. Id. at 581. 8. Plaintiff argues that the MAYA failed to maintain a proper lookout in this case because the designated lookout was posted on the ship’s bridge and not on the bow. However, the court notes that there is no requirement under Inland Rule 5, or the case law construing that rule, requiring the posting of a lookout at a specific location. Rather, the persons in charge of the vessel’s. navigation are obligated to position a lookout at a point best suited for that purpose, having due regard for the circumstances of the case and the conditions of the weather. See, The VEDAMORE, 137 F. 844 (4th Cir.1905). In the case at hand, Capt. Struempell testified that the lookout was positioned on the port wing of the bridge some six stories above the main deck, because that vantage gave him the best visibility under the existing circumstances. Plaintiffs boat would have been located on the port side of the MAYA as she passed Castle Pinckney. As the court stated in Maritrans Operating Partners L.P. v. M/T FAITH I, 800 F.Supp. 133, 142 (D.N.J.1992), “A Rulé 5 violation does not occur when those aboard a vessel have an unobstructed view ... even though no bow lookout is posted.” The court finds that Defendants maintained a proper lookout on the night in question. 9. This court finds that Defendants have shown that they were not negligent on the date in question." }, { "docid": "19128313", "title": "", "text": "Mr. Justice CLIFFORD delivered the opinion of the court. Until within a recent period the sailing regulations founded in ancient usage, sometimes called sea laws, sanctioned by the decisions of the admiralty courts, furnished the principal rules of navigation in such emergencies, aided by the adjudications of the prize courts, whose practice conforms in some respects to the law of nations. Recently Congress has enacted regulations upon the subject, and those regulations are obligatory upon our commercial marine in all cases where they apply, but inasmuch as the act of Congress does not profess to regulate the whole subject of sailing-rules it cannot be understood as superseding the prior established usages of navigation which are not embraced in the sailing-rules contained in the Congressional enactment. Signal lights of a prescribed character are required to be carried by steam-vessels when under way, and sailing-ships under way are required to carry similar lights, with the exception of the white masthead lights, which they shall never cany. Such a requirement, however, is of very little or no value unless the lights are properly displayed and kept burning brightly, nor is it then of any value as a precaution unless those in charge of the other vessel use the means to see the approaching lights before it is too late to adopt the proper measures to prevent a collision. Lookouts are also required by the usages of navigation, but the object of the requirement will never be accomplished in cáse the lookout fails to perform the duty which the requirement contemplates. Nautical lookouts must be properly stationed, and should be vigilant in the performance of their duty, and if they are incompetent or inattentive, and tlie collision occurs in consequence of their neglect, the vessel to which the lookout is attached must be held responsible for the injury resulting to the other vessel. Steamers approaching a sail-ship in such a direction as to involve risk of collision are required to keep out of the way of the sail-ship, but the sail-ship is required to keep her course unless the circumstances are such as to" }, { "docid": "20957953", "title": "", "text": "proceeded at a rate of speed not consistent with able seamanship in view of the fact that he had failed to ascertain the course and position of the vessel relative to the position of fixed navigational aids including Drolls Point Light; and, d. In that the pilot to whom navigation of the Martin was entrusted, failed to use his searchlights and means at his disposal for adequate lookout and, thereby, failed to determine the course of the vessel and her position relative to the known and fixed position of Drolls Point Light. Libelant requests the court to find negligence from the fact that Haney was not licensed by the Coast Guard as a pilot and from the fact that no lookout was posted upon the Martin or her tow in addition to that maintained from the pilot house of the Martin. Although the asserted facts are proved by a preponderance of the evidence, negligence will not be imputed from the absence of the license or from failure to maintain additional lookouts from the vessel and from the bow of the tow in view of the weather conditions then prevailing. I find the lookout from the pilot house of the vessel adequate had the lookout from that point been properly maintained under the weather conditions then existing, but I also find that there was culpable neglect on the part of the officer of the Martin in his failure to employ the opportunity for adequate lookout open to him. 13. I find, upon conflicting evidence, that Drolls Point Light was lighted and operating properly immediately prior to and at the time of the collision. Of the witnesses who testified that the light was not lighted, Haney admitted that he did not see the Light prior to the collision and that, from a sighting of a red buoy some distance above the location of Drolls, he had assumed his position in the channel to be some 200 feet east of the Light, the deckhand on duty on the Martin was engaged in routine duties and had no responsibility for the navigation of the" }, { "docid": "18790578", "title": "", "text": "admiralty “Rules of the Road,” as contained in 33 U.S.C. §§ 154 through 232. These rules impose specific duties on river boaters. In addition, the rules recognize the duty to “keep a proper lookout” and to take “any precautions which may be required by the ordinary practice of seamen.” 33 U.S.C. § 221 (1976). As the Supreme Court has observed, these “federal Rules of the Road ... apply to all vessels regardless of their commercial or noncommercial nature.” Foremost Insurance Co. v. Richardson, 457 U.S. 668, 676 (1982). Given this statutorily-prescribed standard of care, the ACOE was entitled to expect that pleasure craft operators would abide by the ordinary practice of seamen and act in a reasonably prudent fashion. Therefore, it was permissible for them to expect that boaters would understand those uniform symbols commonly utilized by seamen on the nation’s navigable waters. Accordingly, we uphold the district court’s conclusion that the warning system was reasonable under all the circumstances to warn boaters of the hazards of the dam. IY Having found that the United States had taken reasonable precautions to warn boaters of the dam, the district court further concluded that the operators of the boats were guilty of negligence which was a proximate cause of the accident. In addition to supplying alternative support for the judgments in favor of the government, this finding also provides a possible basis for judgments in favor of the passengers on their claims against Láveme Andrews. Accordingly, we must address Laverne’s challenge to the district court’s finding that he was negligent in failing to learn of the dam through consulting navigational charts, maintaining a lookout, or some other method. We find his challenge unpersuasive. It is conceded that Láveme and Leo had not consulted navigational charts of the Ohio River prior to embarking on their journey. Moreover, it is also conceded that both operators were unfamiliar with the waters on which they were travelling and had not bothered to leam the uniform symbols governing marine navigation. The two operators were thus piloting their boats in wholly unfamiliar waters without the benefit of personal" }, { "docid": "19350826", "title": "", "text": "under the bows of the steamer, is not only grossly improbable in itself, but contradicted by the testimony, and is a mathematical impossibility. \"With this pregnant example of the value of the theory of lookouts contended for in this case, let us compare it with the rules established by this court. Without .referring to the numerous cases, the correct doctrine on this subject will be found laid down by Mr. Justice Clifford in delivering the opinion of this court in Chamberlain v. Ward, 21 How., 570: “ Steamers navigating in the thoroughfares of commerce must have constant and vigilant lookouts stationed in proper .places on the vessel.” They'must “be persons of suitable experience, and actually and vigilantly employed on that duty.” “In general, elevated positions, such as the hurricane deck, are not so favorable situations as those more usually selected on .the forward deck, near the stem.” “Persons stationed on the forward deck are less likely to overlook small vessels deeply laden, and more readily ascertain their exact course and movement.”. ' The entire disregard of these rules of navigation by the . steamer, and the consequent destruction of property,- demon-1 strate their correctness and -utility. In fine, we are of opinion that the- collision in this case, and destruction' of- the schooner Perrin, was caused wholly by t!ie negligence and inattention to their duties of the officers who navigated the Louisiana, and that the steamboat should be. condemned to pay the .whole damage incurred by the said collision. Let the decree of the Circuit Court reversing the decree of the District Court' be reyersed. Mr. Chief Justice TANEY dissenting. I dissent from the judgment of the court., It is a case of collision on. the Chesapeake bay, and involves principles and rules of decision of- great interest in the navigation of its waters, where sailing vessels-and st-eam vessels are continually meeting and passing each other in the night, as well as in the day. I think it my duty, therefore, to state the principles of law and the evidence in the case, upon which my opinion has been formed." }, { "docid": "18402622", "title": "", "text": "size of the vessel and the opportunity of the navigator to have a full view of the sea should be taken into consideration in determining the need for a separate and independent lookout. See also the decisions in the First and Fifth Circuits in Stevens v. United States Lines, 1 Cir., 187 F.2d 670; Zigler Co. v. Barker Barge Line, 5 Cir., 167 F. 2d 676; Smith v. Bacon, 5 Cir., 194 F.2d 203; Parker Bros. & Co. v. DeForest, 5 Cir., 221 F.2d 377. We conclude, therefore, that the District Judge was not in error in refusing to instruct the jury as a matter of law that the performance of the duty of lookout was inadequately performed, since it was undertaken by the master of the tug in addition to other active duties. We think, however, that the lookout instruction actually given by the judge did not adequately set forth the duty resting upon the tug. In effect, the judge instructed the jury that a proper lookout must always be maintained by all boats and that if the jury found that the tug was operating in a river frequented by small boats without a proper lookout, then the owner of the tug would be liable provided the lack of proper lookout was the proximate cause of the accident. In our judgment these instructions failed to set out the rules to be applied in case the jury finds as a fact that the tug was proceeding without a proper lookout. It has been suggested that, under Article 29 of the Inland Rules, the failure of a vessel to keep a proper lookout constitutes a violation of the Inland Rules and places the burden upon the ship under the doctrine laid down in The Pennsylvania, 19 Wall. 125, 22 L.Ed. 148, to show not only that the violation did not contribute to the injury but could not have contributed thereto. The judge correctly gave such an instruction with respect to the failure of the tug to blow the whistle before rounding the curve in the river and the failure of the" }, { "docid": "18402624", "title": "", "text": "motorboat to carry a light. He did not give this instruction in regard to the failure of the tug to have a proper lookout if such failure existed in fact. It has been held in a number of decisions in the Second and Fifth Circuits that failure to have a proper lookout is a statutory fault or, in any event, is such a grave default in careful navigation as to impose upon the ship the same obligation as rests upon one which has been guilty of a statutory fault. See Zigler Co. v. Barker Barge Line, 5 Cir., 167 F. 2d 676; Smith v. Bacon, 5 Cir., 194 F.2d 203; Parker Bros. & Co. v. DeForest, 5 Cir., 221 F.2d 377; Ulster Oil Transportation Corp. v. The Matton No. 20, 2 Cir., 210 F.2d 106; Ira S. Bushy & Sons v. United States, 2 Cir., 172 F.2d 447; Gulf Oil Corp. v. The Socony No. 16, 2 Cir., 162 F.2d 869; Afran Transport Co. v. The Bergechief, 2 Cir., 274 F.2d 469; Dwyer Oil Transport v. The Edna M. Matton, 2 Cir., 255 F.2d 380. In our view the violation of the duty, although a serious one, is not a statutory fault with the extreme consequences imposed by The Pennsylvania rule. The purpose of Article 29, which refers to the negligence of a vessel to keep a proper lookout, was not to make an addition to the statutory rules of navigation theretofore set out, but to make certain that compliance with those rules would not excuse the failure of the ship to comply with the other well known rules of good seamanship which exist irrespective of statute. We do not, however, minimize the duty of a vessel to have a proper lookout. On the contrary, we hold that the omission to perform this duty is so grave a default as to give rise to a strong inference that it contributed to the accident and to impose upon the vessel the heavy burden to show by clear and convincing evidence that it did not so contribute. Such a holding is surely" }, { "docid": "21399085", "title": "", "text": "seen a considerable distance, as the night, though dark, was clear; but this view is not justified by the elicited facts. I am unwilling to indulge in speculation as to whether the vision of some lookouts is clearer than that of others, or whether the night was such that the unlighted frame should have been sighted by a lookout exercising ordinary care. The libelant, as owner of the dredge, was charged with the statutory duty of lighting or marking the place where the Pocantico sank, and navigators fulfill their duty, I think, when they look for lights at night to mark obstructions in the pathway of vessels, and the dredge was in fault for failing to maintain such lights or marks as would have prevented the collision. To charge navigators with the responsibility of sighting unlighted or unmarked v/recks after dark, or to require them to bear in mind the exact location of such obstruction merely because they had been previously notified thereof, would not only be burdensome to them, but would put upon them a greater responsibility than the law requires.” Finally, Reading complains that the Waltham Victory negligently failed to post a competent lookout. It argues that the lookout was an ordinary seaman whose eyesight was so defective that he could not obtain an able seaman’s ticket, and who admitted that he had to wear glasses on watch. It appears, however, that the lookout was unable to obtain an able seaman’s ticket because he is color-blind, a defect in no wise impairing his ability to see objects or lights. We know of no rule that holds a seaman incompetent for lookout duty merely because he wears glasses. The lookout was wearing glasses at the time of the collision, and there is no evidence that his vision, as thus corrected, was defective. While the lookout’s testimony was somewhat confused and evasive, we cannot say that he had been inadequately instructed as to what he was to report as lookout, as Reading contends. If the evidence indicates any negligence in the navigation of the Waltham Victory, it was not negligence" }, { "docid": "545043", "title": "", "text": "at her customary speed. Smaller craft have the right to assume larger craft aware of their presence will observe reasonable precautions and are under no duty to warn the larger vessel of the danger. Sweeney, at 285, quoting Moran v. The M/V Georgie May, 164 F.Supp. 881, 884-85 (S.D.Fla.1958). 5. Plaintiff argues based on Sweeney that proof of injury resulting from wake damage switches the burden to Defendants to prove that they were not at fault. In Sweeney, the court stated, “[i]t has been held that a prima facie case is established by proof of injury caused by a swell from a passing vessel.” Id. at 285-86. The court then cited West India Fruit & S.S. Co. v. Raymond, 190 F.2d 673 (5th Cir.1951), where a steamship was held liable for damage to a docked fishing vessel by displacement waves. The court in West India Fruit noted that the master of the steamship had timely notice of the presence of the fishing vessel, and “it was his obligation to see to it that his vessel did not pass at such speed that danger would result from her suction or swells and he is responsible for their effects upon innocent vessels.” Id. at 674. The court then stated that the injury to the fishing boat from swells established a prima facie ease against the steamship: “And since she was the moving vessel she must exonerate herself from blame by showing that it was not in her power to prevent the injury by adopting any practical precautions.” Id. Therefore, Defendants may rebut the presumption of negligence by offering proof of reasonable care under the circumstances, thereby absolving themselves of fault. 6. Plaintiff argues that Defendants failed to maintain a proper lookout, contributing to the cause of the accident. The duty to maintain a proper lookout in inland waters such as Charleston Harbor is imposed by Rule 5 of the Uniform Navigation Rules, Title 33 U.S.C. § 2005. Inland Rule 5 requires that “every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available" }, { "docid": "3203090", "title": "", "text": "At trial, each side attributed fault entirely to the other, relying in large part on the COLREGS. The COLREGS provide a “universal system of sea traffic rules” ap plicable to vessels in international waters. William Tetley, International Maritime and Admiralty Laio 237 (2002). Originally adopted by treaty under the auspices of the International Maritime Organization in 1972, the COLREGS have since been incorporated into the national law of “every shipping nation in the world.” Id. These rules apply to “all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels.” Rule 1(a). Crowley argued that Maritrans violated four provisions of the COLREGS: Rule 5, which establishes a duty to maintain a lookout; Rule 8, which establishes a duty to avoid collision; Rule 13, which makes an overtaking vessel responsible for avoiding collision; and Rule 34, which requires vessels in sight of each other to give a signal when changing course. Maritrans countered that Crowley violated Rule 5 by failing to maintain a proper lookout. Mar-itrans also maintained that Crowley reasonably should have investigated the risks stemming from Captain Nekeferoffs history of alcoholism and health problems, conditions that appeared to be related to a temporary loss of situational awareness shortly before and during the collision. The district court credited Maritrans’ arguments, finding that because the two vessels were operating according to agreed maneuvers, Rules 8 and 13 of the COL-REGS did not apply. To reach this decision, the district court invoked Rule 2, which provides that “[i]n construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.” Rule 2(b). Although noting that the plain language of the special circumstances exception in Rule 2 did not provide such an exception on its face, the district court found that “courts' have either expanded the scope of Rule 2(b)’s special circumstances or have created a wholly separate category of special circumstances involving vessels operating in concert" } ]

[ { "docid": "7710976", "title": "", "text": "Affirmed by published opinion. Senior Judge Phillips wrote the majority opinion, in which Judge Mumaghan joined. Senior Judge Butzner wrote a dissenting opinion. OPINION PHILLIPS, Senior Circuit Judge: The question is whether the Eleventh Amendment provides immunity to suit for the Commonwealth of Virginia (“the Commonwealth”) in actions filed against it in federal court by state employees seeking to recover damages for wage and overtime violations . of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, as amended. The district court, rejecting contentions that the Commonwealth’s immunity had been constitutionally abrogated by Congress under enforcement powers conferred by Section 5 of the Fourteenth Amendment or, alternatively, had been waived by the Commonwealth, dismissed the action for lack of subject matter jurisdiction. We affirm. I. Employees of twenty-one Virginia state prison and mental health facilities filed separate actions against the Commonwealth in the United States District Courts for the Eastern and Western Districts of Virginia, alleging violations of the FLSA in various respects affecting their, compensation as state employees. On July 10, 1995, the district court denied the Commonwealth’s motion to dismiss the then-consolidated actions on Eleventh Amendment jurisdictional grounds, holding that under Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), Congress had the power under the Commerce Clause unilaterally to abrogate the states’ Eleventh Amendment immunity to federal FLSA actions and had unequivocally done so by its 1974 amendments to that Act. See 949 F.Supp. 438, 440 (W.D.Va.1996) (reciting procedural history). Following an unsuccessful effort by the Commonwealth to obtain interlocutory review of that decision, and while the consolidated actions were pending disposition in the district court, the Supreme Court overruled Union Gas, holding in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), that Congress did not have power under Article I of the Constitution unilaterally to abrogate the Eleventh Amendment immunity of noncon-senting states to suits in federal court for the recovery of monetary relief. The district court then directed the parties to re-brief the issue of Eleventh Amendment immunity in light" } ]

[ { "docid": "23382119", "title": "", "text": "989 F.2d 491 (4th Cir.1993) (unpublished). Because Andrews does not dispute the factual accuracy of the record of his previous suit against Daw in Daw's official capacity, the district court did not err in taking judicial notice of this prior case. . Andrews does not contest that the dismissal of his prior suit on Eleventh Amendment immunity grounds is a final judgment on the merits. Rule 41(b) of the Federal Rules of Civil Procedure provides that unless the court otherwise specifies, \"a dismissal ... other than a dismissal for lack of jurisdiction ... operates as an adjudication upon the merits.” Fed.R.Civ.P. 41(b). Our cases have been unclear on whether a dismissal on Eleventh Amendment immunity grounds is a dismissal for failure to state a claim under Rule 12(b)(6) or a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1). Compare Biggs v. Meadows, 66 F.3d 56, 58-59 (4th Cir. 1995) (addressing dismissal on Eleventh Amendment grounds as dismissal for failure to state claim), with Abril v. Virginia, 145 F.3d 182, 184 (4th Cir.1998) (addressing dismissal on Eleventh Amendment grounds as dismissal for lack of subject matter jurisdiction), and Republic of Paraguay v. Allen, 134 F.3d 622, 626 (4th Cir.) (same), cert. denied, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998). For this case, we assume without deciding that a dismissal on Eleventh Amendment immunity grounds is a final judgment on the merits for purposes of res judicata. . In the alternative, Daw urges us to affirm the district court’s dismissal of Andrews's complaint on the ground of qualified immunity. This Court \"may affirm the dismissal by the district court on the basis of any ground supported by the record even if it is not the basis relied upon by the district court.” Ostrzenski v. Seigel, 177 F.3d 245, 253 (4th Cir. 1999). Because the district court has yet to address this claim, we decline Daw’s invitation to affirm the district court's dismissal of Andrews’s complaint on the ground of qualified immunity. Cf. McVey v. Stacy, 157 F.3d 271, 279 (4th Cir. 1998) (affirming district court’s ruling deferring" }, { "docid": "23348946", "title": "", "text": "sufficiency of the amended complaint under Fed.R.Civ.P. 12(b)(6). See Dist. Ct. Op., 2006 WL 141645, at *2. The distinction is significant: while we must accept all factual allegations in a complaint as true when adjudicating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), see, e.g., Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir.2001), we have held that, in adjudicating a motion to dismiss for lack of subject-matter jurisdiction, a district court may resolve disputed factual issues by reference to evidence outside the pleadings, including affidavits. See, e.g., Antares Aircraft, L.P. v. Fed. Rep. of Nigeria, 948 F.2d 90, 96 (2d Cir.1991). But see Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997) (holding that, when reviewing dismissal under Fed.R.Civ.P. 12(b)(6) or 12(b)(1), \"the court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff\"). It is well-settled that legislative immunity is not a jurisdictional bar, but is rather a personal defense that may be asserted to challenge the sufficiency of a complaint under Rule 12(b)(6). See Goldberg v. Town of Rocky Hill, 973 F.2d 70, 71-72 (2d Cir.1992) (reviewing denial of motion to dismiss on legislative immunity grounds under Fed.R.Civ.P. 12(b)(6)). Therefore, we conclude that the District Court improperly construed defendants’ motion to dismiss plaintiffs' claims on legislative immunity grounds under Rule 12(b)(1), as opposed to Rule 12(b)(6). We construe this aspect of defendants’ motion under the standards applicable to Rule 12(b)(6) for the purposes of this appeal. However, we need not decide whether the District Court correctly reviewed defendants’ motion to dismiss on sovereign immunity grounds as a challenge to the District Court’s subject-matter jurisdiction, nor need we consider the related question of whether facts outside plaintiffs’ amended complaint could be considered for the purposes of resolving the motion. Cf. Wisc. Dep’t of Corr. v. Schacht, 524 U.S. 381, 391, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998) (stating that the ques tion of whether “Eleventh Amendment immunity is a matter of subject matter jurisdiction\" is one that “we" }, { "docid": "9754405", "title": "", "text": "the merits. As explained below, the district court’s dismissal of the federal claims under the Eleventh Amendment constituted a dismissal for lack of jurisdiction. DISCUSSION Plaintiffs make four arguments. First, Plaintiffs claim that the district court erred in dismissing the federal claims on the basis of Eleventh Amendment immunity. Secondly, Plaintiffs argue that even if, arguendo, the federal claims were properly dismissed due to Eleventh Amendment immunity, the district court erred in dismissing the claims with prejudice. Thirdly, Plaintiffs aver that the district court erred by granting Defendants’ motion to dismiss without identifying the precise rule upon which it relied and by ruling without affording Plaintiffs discovery regarding the Eleventh Amendment immunity defense. Finally, Plaintiffs argue that if Defendants are not entitled to Eleventh Amendment immunity, then the district court should be required to revisit the issue of assuming supplemental jurisdiction over Plaintiffs’ state law claims. Because we rule that Defendants are not entitled to Eleventh Amendment immunity on any of the claims, we decline to address Plaintiffs’ second argument. We take the remaining three issues in order. The first two issues that we address are reviewed de novo, because these issues address the ruling on Eleventh Amendment immunity. Barton v. Summers, 293 F.3d 944, 948 (6th Cir.2002). I. Eleventh Amendment immunity bars federal courts from exercising jurisdiction over a claim, where the party asserting immunity establishes that immunity applies. In burden allocation, as well as in other respects, Eleventh Amendment immunity may be considered to be an affirmative defense to jurisdiction. Plaintiffs argue that Eleventh Amendment immunity does not bar the federal claims in this case. The Eleventh Amendment bars suits against a state by citizens of another state, and, under Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the Eleventh Amendment prohibits citizens from suing their own state. Barton v. Summers, 293 F.3d 944, 948 (6th Cir.2002) (citing Hans). When a state or an arm of the state is sued, there are various exceptions to immunity; but none of these exceptions fully governs the present ease. Contrary to the dissent’s characterization of our" }, { "docid": "2366208", "title": "", "text": "Brown uses the Consent Form for a commercial purpose, and that Sofamor is suffering commercial harm as a result of the alleged false and misleading statements therein. In response, Brown moved to dismiss Sofa-mor’s complaint based on lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), and failure to state a claim upon which relief can be granted under Fed. R.Civ.P. 12(b)(6). Brown claimed, inter alia, that he was immune from suit by virtue of the Eleventh Amendment, and that § 43(a) of the Lanham Act was inapplicable to the Consent Form. By consent of the parties, Magistrate Judge J. Kelly Arnold heard and decided Sofamor’s motion for a preliminary injunction and Brown’s motion to dismiss, denying both motions. Brown unsuccessfully moved the district court on July 25, 1996, for reconsideration of the denial of his motion to dismiss and thereafter filed a timely notice of appeal. II The sole issue before us is whether the district court erred in failing to dismiss Sofa-mor’s complaint on Eleventh Amendment grounds. A The Eleventh Amendment creates an important limitation on federal court jurisdiction, generally prohibiting federal courts from hearing suits brought by private citizens against state governments without the state’s consent. See Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 507, 33 L.Ed. 842 (1890); Natural Resources Defense Council v. California Dep’t of Transportation, 96 F.3d 420, 421 (9th Cir.1996). Even when Congress is vested with complete law-making authority over a particular area by the Constitution, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting states. See Seminole Tribe of Florida v. Florida, — U.S.-,-, 116 S.Ct. 1114, 1131, 134 L.Ed.2d 252 (1996). The recognition of sovereign immunity embodied in the Eleventh Amendment has not been limited to the suits described in its text, however. See Idaho v. Coeur d’Alene, — U.S.-,-, 117 S.Ct. 2028, 2033,138 L.Ed.2d 438 (1997); Seminole Tribe, — U.S. at-, 116 S.Ct. at 1122. Acknowledging the broader concept of state sovereign immunity implicit in the Constitution and the respect afforded to states in our federal system, protection from suit has been extended" }, { "docid": "23382110", "title": "", "text": "suit pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We reasoned that Horton was sued in his official capacity and was not subject to suit under § 1983 because Andrews failed to allege that Horton was personally involved in the alleged unlawful conduct, and Daw was sued in his official capacity and was shielded from a suit for money damages by the Eleventh Amendment. See Andrews v. Daw, 117 F.3d 1413 (4th Cir.1997) (unpublished). On August 11, 1997, Andrews filed a second § 1983 complaint in the same federal district court, naming as the sole defendant Daw in his individual capacity. This second suit was based upon the same factual circumstances as the first suit and asserted essentially identical claims. On September 24,1997, Daw moved to dismiss the suit pursuant to Rule 12(b)(6). On February 19, 1998, the district court granted Daw’s 12(b)(6) motion to dismiss on the ground that the doctrine of res judicata barred Andrews’s suit because his previous suit against Daw in Daw’s official capacity had been dismissed. On March 3, 1998, Andrews filed a timely notice of appeal. II. On appeal, Andrews principally argues that the district court’s Rule 12(b)(6) dismissal of his complaint on the ground of res judicata was erroneous because a prior lawsuit against an individual in his official capacity does not bar later relitigation of claims against that same individual in his personal capacity. In support of this argument, Andrews cites several cases in which courts have held that government employees in their individual capacity are not in privity with the government for purposes of res judicata. Andrews contends that because a suit against a government official in his official capacity is in reality nothing more than a suit against the government, a government official in his individual capacity is not in privity with himself in his official capacity for purposes of res judicata. Because this case is on appeal from a Rule 12(b)(6) dismissal, our review is de novo. See Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). Under the doctrine of res judicata, “a" }, { "docid": "23382118", "title": "", "text": "REVERSED AND REMANDED. . Andrews also argues that Rule 12(b)(6) dismissal of his lawsuit on the basis of res judi-cata was procedurally inappropriate because the defense of res judicata was not clearly established by the affirmative allegations of the complaint. We disagree. This Court has previously upheld the assertion of res judicata in a motion to dismiss. See Thomas v. Consolidation Coal Co., 380 F.2d 69, 75 (4th Cir.1967). Although an affirmative defense such as res judicata may be raised under Rule 12(b)(6) \"only if it clearly appears on the face of the complaint,” Richmond, Fredericksburg & Potomac R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir.1993), when entertaining a motion to dismiss on the ground of res judicata, a court may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issue of fact, see Day v. Moscow, 955 F.2d 807, 811 (2d Cir.1992); Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir.1984); Briggs v. Newberry County Sch. Dist., 838 F.Supp. 232, 234 (D.S.C.1992), aff'd, 989 F.2d 491 (4th Cir.1993) (unpublished). Because Andrews does not dispute the factual accuracy of the record of his previous suit against Daw in Daw's official capacity, the district court did not err in taking judicial notice of this prior case. . Andrews does not contest that the dismissal of his prior suit on Eleventh Amendment immunity grounds is a final judgment on the merits. Rule 41(b) of the Federal Rules of Civil Procedure provides that unless the court otherwise specifies, \"a dismissal ... other than a dismissal for lack of jurisdiction ... operates as an adjudication upon the merits.” Fed.R.Civ.P. 41(b). Our cases have been unclear on whether a dismissal on Eleventh Amendment immunity grounds is a dismissal for failure to state a claim under Rule 12(b)(6) or a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1). Compare Biggs v. Meadows, 66 F.3d 56, 58-59 (4th Cir. 1995) (addressing dismissal on Eleventh Amendment grounds as dismissal for failure to state claim), with Abril v. Virginia, 145 F.3d 182, 184 (4th Cir.1998) (addressing" }, { "docid": "2603358", "title": "", "text": "not to do. Based on our weighing of the above factors, we hold that Dr. Darlak received all the due process required by the Constitution. Y. Disposition Below In summary, the district court was correct in dismissing DHHR and Charity, the state entities in this case, on eleventh amendment grounds, by granting their motion to dismiss for lack of subject-matter jurisdiction, but this dismissal does not constitute a judgment on the merits. “ ‘A dismissal for want of jurisdiction bars access to federal courts and is res judicata only of the lack of a federal court’s power to act. It is otherwise without prejudice to the plaintiff’s claims, and the rejected suit- or may reassert his claim in any competent court.’ ” Voisin’s Oyster House, Inc., 799 F.2d at 188 (quoting Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1348 (5th Cir.1985)). In its judgment, the district court did not specify that the dismissal as to DHHR and Charity was without prejudice, and did not expressly state that the dismissal was for lack of jurisdiction. However, in its minute entry the court made it clear that the dismissal was on eleventh amendment grounds. We affirm this dismissal, expressly noting that it does not constitute a judgment on the merits. Similarly, the district court was correct in granting summary judgment in favor of Drs. Bobear and Barkman. Because we hold that under the undisputed facts of this case, Dr. Darlak received all the process that was due him, these defendants were entitled to judgment as a matter of law, and we therefore affirm the district court’s grant of summary judgment as to them. See Fed.R.Civ.P. 56(c). Turning to the district court’s disposition of Dr. Darlak’s claims against Dr. Hanna, we also affirm. As noted above, the district court treated Dr. Hanna’s Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted as a motion for summary judgment. The district court's authority to do this is provided in Federal Rule of Civil Procedure 12(c), which provides: After the pleadings are" }, { "docid": "13802210", "title": "", "text": "appeals to federal district court on July 17, 2000. Two days later, Texas moved to dismiss plaintiffs’ claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the grounds of Texas’s Eleventh Amendment immunity. The district court granted the motion to dismiss, holding, inter alia, that because there was “no clear guidance from the [Supreme] Court on whether removal alone constitutes waiver of Eleventh Amendment immunity,” “under [then] current Eleventh Amendment jurisprudence” the state “could avail itself of federal court jurisdiction, and then seek a dismissal on Eleventh Amendment grounds.” Dist. Ct. Op. of April 16, 2001 at 6. Plaintiffs timely appealed. II. Analysis We review de novo a district court’s grant of a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction because of state sovereign immunity. United States v. Texas Tech University, 171 F.3d 279, 288 (5th Cir.1999). A. Waiver of State Sovereign Immunity From Private Suit State sovereign immunity is a fundamental aspect of the sovereignty that the states enjoyed before the ratification of the Constitution and the Eleventh Amendment, and it was preserved intact by the Constitution. Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). The presupposition or concept of state sovereign immunity “has two parts: first, that each State is a sovereign entity in our federal system; and second, that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 634, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999)(quoting Hans v. Louisiana 134 U.S. 1, 13, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). The term “state sovereign immunity” is used imprecisely by the courts to refer to both parts, i.e., the immunity from suit, and the entity itself, including all of its powers, rights and privileges. See Alden, 527 U.S. at 712-13, 119 S.Ct. 2240. Because the Eleventh Amendment recognizes a State’s sovereign immunity from suits brought by individuals in federal court, the Supreme Court has often referred to" }, { "docid": "23382111", "title": "", "text": "March 3, 1998, Andrews filed a timely notice of appeal. II. On appeal, Andrews principally argues that the district court’s Rule 12(b)(6) dismissal of his complaint on the ground of res judicata was erroneous because a prior lawsuit against an individual in his official capacity does not bar later relitigation of claims against that same individual in his personal capacity. In support of this argument, Andrews cites several cases in which courts have held that government employees in their individual capacity are not in privity with the government for purposes of res judicata. Andrews contends that because a suit against a government official in his official capacity is in reality nothing more than a suit against the government, a government official in his individual capacity is not in privity with himself in his official capacity for purposes of res judicata. Because this case is on appeal from a Rule 12(b)(6) dismissal, our review is de novo. See Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). Under the doctrine of res judicata, “a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). Because Andrews brought his first suit against Daw in federal court, federal rules of res judicata apply. See Shoup v. Bell & Howell Co., 872 F.2d 1178, 1179 (4th Cir.1989). “To establish a res judicata defense, a party must establish: (1) a final judgment on the merits in a prior suit, (2) an identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or their privies in the two suits.” Jones v. SEC, 115 F.3d 1173, 1178 (4th Cir.1997) (internal quotation marks omitted), cert. denied, 523 U.S. 1072, 118 S.Ct. 1512, 140 L.Ed.2d 666 (1998). The only issue the parties dispute in this case is the third prong of this test — -whether Daw in his official capacity is in privity with himself in his individual capacity. In ad dressing" }, { "docid": "7020924", "title": "", "text": "L.Ed. 890 (1898)). The court ultimately decided, however, that it did not have subject matter jurisdiction because the claimants were not alleging a “continuing violation of federal law” and therefore could not bring their claims within the exception to Eleventh Amendment immunity established in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). 949 F.Supp. at 1273 (citing Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), and Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977)). Alternatively, the court held that it did not have “jurisdiction to review final decisions of a state court,” and therefore could not order the vacatur of Breard’s conviction and sentence obtained in Virginia’s courts. 949 F.Supp. at 1273 (citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841-42, 36 L.Ed.2d 439 (1973)). The district court therefore dismissed the action. This appeal followed. II Paraguay challenges both of the grounds upon which the district court dismissed the action for lack of subject matter jurisdiction. The Commonwealth defends the dismissal on both grounds and also urges as an alternative basis for affirmance that the claims raise only nonjusticiable “political questions.” We review de novo the district court’s dismissal of the action for lack of subject matter jurisdiction. See White v. United States, 53 F.3d 43, 45 (4th Cir.1995) (citing Ahmed v. United States, 30 F.3d 514, 516 (4th Cir.1994)). Because we consider it dispositive of the appeal, we address only the Eleventh Amendment ground of the district court’s dismissal of the action for lack of subject matter jurisdiction. Though the basic Eleventh Amendment principles are settled and familiar, we summarize them here briefly. The Amendment imposes, in the form of sovereign immunity, “a constitutional limitation on the federal judicial power” over certain actions against unconsenting states of the Union. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906-07, 79 L.Ed.2d 67 (1984). Though the immunity thus provided" }, { "docid": "9754443", "title": "", "text": "F.2d at 303-04; Jacintoport Corp., 762 F.2d at 439; Blake, 612 F.2d at 724. Finally, the dissent argues that an alternative basis for dismissal exists, because the dissent concludes that Plaintiffs’ claims fail on the merits. The district court never ruled on the merits, instead dismissing the case for lack of jurisdiction; thus, ordinarily it would be improper for this Court to issue the initial ruling on Defendants’ motion for summary judgment. Moreover, on appeal, neither of the parties has raised the issue of the merits of the claims; rather, the parties’ appellate briefs discuss only the issue of jurisdiction. Because the merits of the claims are not argued on appeal, Defendants’ motion for summary judgment cannot be addressed by this Court, in the present appeal proceeding. E.g., Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 881 (6th Cir.1996) (“Although plaintiffs notice of appeal indicates that she is appealing the entire district court judg ment, she raises only the dismissal of her ADA claims in her brief on appeal. Accordingly, plaintiff has waived all other arguments.”) (citation omitted). This Court will not rule on the merits at this stage. II. Plaintiffs claim that the district court erred by not identifying the rule it relied upon in dismissing the case and in not affording Plaintiffs discovery regarding the Eleventh Amendment immunity issue. However, here, Plaintiffs fail to assert an additional meritorious basis for relief. Neither Defendants’ motion to dismiss nor the district court’s opinion cited a subsection of fed.R.Civ.P. 12(b). Plaintiffs claim that Defendants’ motion failed to meet the pleading standard, under fed. R.Civ.P. 7(b)(1) (requiring that a motion “shall state with particularity the grounds therefor”). However, we do not require a citation to a specific subsection of Rule 12, in asserting Eleventh Amendment immunity. In fact, although Eleventh Amendment immunity is a defense to jurisdiction, Defendants and the district court had good reason to avoid citing fed.R.Civ.P. 12(b)(1) (subject matter jurisdiction) or 12(b)(2) (personal jurisdiction): namely, the Supreme Court has dispelled the notion of this immunity as simply an issue of subject matter jurisdiction, without classifying this immunity as entirely an" }, { "docid": "21084889", "title": "", "text": "PHRA and Pep Boys on grounds similar to those of the Municipality and dismissed sua sponte the remaining claims against PRASA and Ondeo based on the same reasoning. With no federal claims remaining, the district court declined to exercise supplemental jurisdiction over the state law claims. The court denied plaintiffs’ motion for reconsideration. This appeal ensued. II. DISCUSSION A. Standard of Review The district court dismissed the section 1983 counts against the Commonwealth and DTOP on jurisdictional grounds, finding plaintiffs’ claims barred by the Eleventh Amendment. The section 1983 claims against the remaining governmental defendants and Ondeo were dismissed under Rule 12(b)(6) for failure to state a claim. In both instances, we review the lower court’s dismissal order de novo, accepting the plaintiffs’ well-pleaded facts as true and indulging all reasonable inferences therefrom. See, e.g., Redondo-Borges v. U.S. Dep’t of Hous. & Urban Dev., 421 F.3d 1, 5 (1st Cir.2005) (Rule 12(b)(6)); Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 22 (1st Cir.2001) (Eleventh Amendment immunity). We are not bound by the reasoning of the district court, and may affirm an order of dismissal on any basis made apparent by the record. See Otero v. P.R. Indus. Comm’n, 441 F.3d 18, 20 (1st Cir.2006). B. Eleventh Amendment Immunity The Eleventh Amendment, as construed by the Supreme Court, bars a citizen from bringing an action in federal court against his or her own state. See Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); see also Maysonet-Robles v. Cabrero, 323 F.3d 43, 48 (1st Cir.2003) (citing Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). A state, however, can waive its Eleventh Amendment immunity in three ways: “(1) by a clear declaration that it intends to submit itself to the jurisdiction of a federal court or administrative proceeding; (2) by consent to or participation in a federal program for which waiver of immunity is an express condition; or (3) by affirmative conduct in litigation.” New Hampshire v. Ramsey, 366 F.3d 1, 15" }, { "docid": "22181555", "title": "", "text": "previously held that Congress did not abrogate states’ Eleventh Amendment immunity when it enacted 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (citation omitted). Second, Ruiz neither alleges in her amended complaint, nor is there any other indication in the record, that the state of Colorado waived its Eleventh Amendment immunity in this ease. For those reasons, we conclude that the district court lacked subject matter jurisdiction over Ms. Ruiz’s § 1983 claim with respect to the CDHS and Ms. McDonnell, acting in her “official capacity.” Accordingly, we affirm the district court’s dismissal of those parties on that ground. C. Section 1983 Claim Finally, Defendants-Appellees argue that: (1) Ms. Ruiz’s § 1983 claim is barred with respect to the CDHS and Ms. McDonnell, acting in her “official capacity,” because neither qualifies as a “person” within the meaning of § 1983; and (2) Ms. Ruiz’s amended complaints fail to properly allege a “danger creation” cause of action against the State Defendants under § 1983. The State Defendants advanced both arguments in their motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). We review de novo the district court’s dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1149 (10th Cir.2001) (citation omitted). A Rule 12(b)(6) motion to dismiss may be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling her to relief under her theory of recovery. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984) (citation omitted). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. Id. (citation omitted). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support her" }, { "docid": "23382120", "title": "", "text": "dismissal on Eleventh Amendment grounds as dismissal for lack of subject matter jurisdiction), and Republic of Paraguay v. Allen, 134 F.3d 622, 626 (4th Cir.) (same), cert. denied, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998). For this case, we assume without deciding that a dismissal on Eleventh Amendment immunity grounds is a final judgment on the merits for purposes of res judicata. . In the alternative, Daw urges us to affirm the district court’s dismissal of Andrews's complaint on the ground of qualified immunity. This Court \"may affirm the dismissal by the district court on the basis of any ground supported by the record even if it is not the basis relied upon by the district court.” Ostrzenski v. Seigel, 177 F.3d 245, 253 (4th Cir. 1999). Because the district court has yet to address this claim, we decline Daw’s invitation to affirm the district court's dismissal of Andrews’s complaint on the ground of qualified immunity. Cf. McVey v. Stacy, 157 F.3d 271, 279 (4th Cir. 1998) (affirming district court’s ruling deferring qualified-immunity issue because record had not been adequately developed at motion-to-dismiss stage)." }, { "docid": "1666100", "title": "", "text": "Defendant contends that this Court lacks subject matter jurisdiction over this action because defendant is entitled to immunity under the Eleventh Amendment to the United States Constitution. (Id.) Defendant further contends that, even if the Court were to decide that Eleventh Amendment immunity does not apply to the School Dic-trict, plaintiff has failed to state a federal claim and therefore the Court should decline to retain jurisdiction over plaintiffs remaining state law claims. (Id.) First, we will consider defendant’s Rule 12(b)(1) motion, and then, if necessary, defendant’s Rule 12(b)(6) motion. DISCUSSION I. Motion to Dismiss Pursuant to Rule 12(b)(1) A. Standard of Review When considering a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), a court must “accept as true all material factual allegations in the complaint.” Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984)). However, “jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Drakos, 140 F.3d at 129 (citing Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 69 L.Ed. 413 (1925)). When determining whether subject matter jurisdiction exists, a court may properly refer to evidence beyond the pleadings to resolve disputed jurisdictional facts. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). “Thus, the standard used to evaluate a Rule 12(b)(1) claim is akin to that for summary judgment under Fed. R. Crv. P. 56(e).” Serrano v. 900 5th Avenue Corp., 4 F.Supp.2d 315, 316 (S.D.N.Y.1998). Therefore, plaintiff bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996). B. Eleventh Amendment Immunity The Eleventh Amendment “affirms the fundamental principle that sovereign immunity limits the grant of judicial authority contained in Article III of the Constitution.” Fay v. South Colonie Cent. Sch. Dist., 802 F.2d" }, { "docid": "23382109", "title": "", "text": "under the United States Constitution and state law by unlawfully chasing, arresting, assaulting, and inflicting mental distress upon him before and during this traffic stop. On July 2, 1996, Andrews filed a complaint asserting these allegations under 42 U.S.C.A. § 1983 (West Supp.1999) in the United States District Court for the Eastern District of North Carolina. The complaint named as defendants J.M. Daw, Trooper, North Carolina Highway Patrol; Edward W. Horton, Commander, North Carolina Highway Patrol; and the State of North Carolina. On October 18, 1996, the district court dismissed the suit against North Carolina on the basis of Eleventh Amendment immunity, granted summary judgment to Horton on the ground that Andrews failed to proffer any evidence that Horton was involved in the alleged deprivation of Andrews’s constitutional rights, and granted summary judgment to Daw on the ground of qualified immunity. On appeal, this Court affirmed the district court’s dismissal of the claims against Horton and Daw on different grounds, concluding that the appropriate remedy with regard to Horton and Daw was dismissal of the suit pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We reasoned that Horton was sued in his official capacity and was not subject to suit under § 1983 because Andrews failed to allege that Horton was personally involved in the alleged unlawful conduct, and Daw was sued in his official capacity and was shielded from a suit for money damages by the Eleventh Amendment. See Andrews v. Daw, 117 F.3d 1413 (4th Cir.1997) (unpublished). On August 11, 1997, Andrews filed a second § 1983 complaint in the same federal district court, naming as the sole defendant Daw in his individual capacity. This second suit was based upon the same factual circumstances as the first suit and asserted essentially identical claims. On September 24,1997, Daw moved to dismiss the suit pursuant to Rule 12(b)(6). On February 19, 1998, the district court granted Daw’s 12(b)(6) motion to dismiss on the ground that the doctrine of res judicata barred Andrews’s suit because his previous suit against Daw in Daw’s official capacity had been dismissed. On" }, { "docid": "8181279", "title": "", "text": "and just as issues of fact[,] it must be decided afteri,] and not before[,] the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for re lief, then dismissal of the case would be on the merits, not for want of jurisdiction. Id. at 682, 66 S.Ct. 773 (emphasis added). We applied this principle to the issue of Eleventh Amendment immunity in Harris v. Owens, 264 F.3d 1282 (10th Cir.2001), where we stated that “the question whether [a] suit states a claim upon which relief can be granted is [not] coincident in scope with [an] Eleventh Amendment inquiry.” Id. at 1289. Because “[¡Jurisdiction is not defeated by the possibility that averments might fail to state a cause of action on which petitioners [can] actually recover,” Steel Co. v. Citizens for a Better Env% 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citations omitted) (quotations omitted), our analysis of subject matter jurisdiction does not turn on whether the complaint states a valid cause of action. In fact, in Harris, we reviewed an order dismissing a complaint on the alternative grounds of lack of subject matter jurisdiction based on Eleventh Amendment immunity and failure to state a claim. 264 F.3d at 1285-86. We decided that the district court had subject matter jurisdiction over the claims under the Ex parte Young exception but that it properly dismissed the complaint for failure to state a claim. We explained: “While we ultimately reject [the plaintiffs] claim on the merits [for failure to state a claim], it should not be characterized as frivolous.” Id. at 1289. The district court in this case erred in applying the plausibility standard applicable to Rule 12(b)(6) to conclude that the Ex parte Young exception did not apply. D. MCN’s Complaint Meets the Ex parte Young Requirements for its Claims Against the OTC Commissioners and the Attorney General MCN’s complaint satisfies the Ex parte Young exception’s three requirements for its claims against the OTC commissioners and the Attorney General." }, { "docid": "23348947", "title": "", "text": "asserted to challenge the sufficiency of a complaint under Rule 12(b)(6). See Goldberg v. Town of Rocky Hill, 973 F.2d 70, 71-72 (2d Cir.1992) (reviewing denial of motion to dismiss on legislative immunity grounds under Fed.R.Civ.P. 12(b)(6)). Therefore, we conclude that the District Court improperly construed defendants’ motion to dismiss plaintiffs' claims on legislative immunity grounds under Rule 12(b)(1), as opposed to Rule 12(b)(6). We construe this aspect of defendants’ motion under the standards applicable to Rule 12(b)(6) for the purposes of this appeal. However, we need not decide whether the District Court correctly reviewed defendants’ motion to dismiss on sovereign immunity grounds as a challenge to the District Court’s subject-matter jurisdiction, nor need we consider the related question of whether facts outside plaintiffs’ amended complaint could be considered for the purposes of resolving the motion. Cf. Wisc. Dep’t of Corr. v. Schacht, 524 U.S. 381, 391, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998) (stating that the ques tion of whether “Eleventh Amendment immunity is a matter of subject matter jurisdiction\" is one that “we have not decided”); Woods v. Rondout Valley Central Sch. Dist. Bd of Educ., 466 F.3d 232, 237-39 (2d Cir.2006) (discussing ambiguities in Supreme Court's treatment of Eleventh Amendment sovereign immunity defense). This is so because, as explained post, even assuming arguendo the version of the facts urged by defendants, they are not entitled to sovereign immunity with respect to the instant claims. . Plaintiffs argue that it is unclear whether the District Court intended to dismiss all of their claims for money damages. See Appel-lees’ Br. at 51 n. 15 (contending that \"[t]he precise meaning of this aspect of the District Court’s ruling is unclear” and that the District Court might have intended not to bar claims for \"other aspects of compensatory damages” such as \"emotional distress” and for \"punitive damages”). We find no ambiguity in the District Court’s statement that “[a]ny claim for money damages ... is barred,” Dist. Ct. Op., 2006 WL 141645, at *5 (emphasis added), and we therefore reject plaintiffs’ assertion that the District Court's ruling was unclear. We express no" }, { "docid": "8181278", "title": "", "text": "substantial claim for relief against the [s]tate officers that does not merely allege a violation of federal law ‘solely for the purpose of obtaining jurisdiction.’ ” Id. (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690 n. 10, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949)). Different standards apply to a motion to dismiss based on lack of subject matter jurisdiction under Rule 12(b)(1) and a motion to dismiss for failure to state a claim under Rule 12(b)(6). As the Supreme Court explained in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946): Jurisdiction ... is not defeated ... by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of Iaw[,] and just as issues of fact[,] it must be decided afteri,] and not before[,] the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for re lief, then dismissal of the case would be on the merits, not for want of jurisdiction. Id. at 682, 66 S.Ct. 773 (emphasis added). We applied this principle to the issue of Eleventh Amendment immunity in Harris v. Owens, 264 F.3d 1282 (10th Cir.2001), where we stated that “the question whether [a] suit states a claim upon which relief can be granted is [not] coincident in scope with [an] Eleventh Amendment inquiry.” Id. at 1289. Because “[¡Jurisdiction is not defeated by the possibility that averments might fail to state a cause of action on which petitioners [can] actually recover,” Steel Co. v. Citizens for a Better Env% 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citations omitted) (quotations omitted), our analysis of subject matter jurisdiction does not" }, { "docid": "13802209", "title": "", "text": "Act or this part. 28 C.F.R. § 35.130(f). Plaintiffs alleged that by collecting a fee to pay for the placard program, Texas violated both the ADA and the surcharge regulation. In September 1997, Texas removed the case to the federal district court for the Western District of Texas, which remanded the case sua sponte on the grounds that the Tax Injunction Act barred federal jurisdiction over plaintiffs’ suit. The Texas state district court granted plaintiffs’ motion for class certification and denied Texas’s motion to dismiss because of the state’s sovereign immunity. Texas appealed from that ruling to the Texas state court of appeals. While that appeal was pending, we decided in a separate case, Neinast v. State of Texas, 217 F.3d 275 (5th Cir.2000), that the placard charges were fees, not taxes, and that “the district court erred in holding that the placard funds were a tax and thus within the scope of the Tax Injunction Act.” Id. at 279. Upon learning of our Neinast ruling, Texas removed this case from the Texas court of appeals to federal district court on July 17, 2000. Two days later, Texas moved to dismiss plaintiffs’ claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the grounds of Texas’s Eleventh Amendment immunity. The district court granted the motion to dismiss, holding, inter alia, that because there was “no clear guidance from the [Supreme] Court on whether removal alone constitutes waiver of Eleventh Amendment immunity,” “under [then] current Eleventh Amendment jurisprudence” the state “could avail itself of federal court jurisdiction, and then seek a dismissal on Eleventh Amendment grounds.” Dist. Ct. Op. of April 16, 2001 at 6. Plaintiffs timely appealed. II. Analysis We review de novo a district court’s grant of a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction because of state sovereign immunity. United States v. Texas Tech University, 171 F.3d 279, 288 (5th Cir.1999). A. Waiver of State Sovereign Immunity From Private Suit State sovereign immunity is a fundamental aspect of the sovereignty that the states enjoyed before the ratification of the" } ]

[ { "docid": "10320025", "title": "", "text": "3508, 73 L.Ed.2d 1383 (1982) (catheterization is a “related service”); Tatro v. State of Texas, 625 F.2d 557 (5th Cir.1980) (same). Defendants next assert that, even if the Jewel Manor program was subject to the EHCA, the closing of the school and reassignment of the plaintiffs‘was not a change in placement. Defendants principally rely on Concerned Parents & Citizens for the Continuing Education at Malcolm X. (PS79) v. New York City Board of Ed., 629 F.2d 751 (2nd Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981). In that case, one school, P.S. 79, was closed for budgetary reasons, and the 185 handicapped children enrolled there, out of a total enrollment of 310, were moved to different schools which did not provide the “extremely innovative educational program” available at P.S. 79. The District Court found this to be a change in educational placement under the Act. In reversing, the Second Circuit stated that “the term ‘educational placement’ refers only to the general type of educational program in which the child is placed.” 629 F.2d at 753. The Court stated that the requirements of § 1415 would not be triggered by a decision to transfer the special educational classes from one school to another, even if the new programs varied somewhat from the old. Id. at 753-54. Special education refers to the general program and not variations within it. Id. The Court noted that the language of § 1415(b)(1)(C), supra, suggested that the requirements of § 1415 were limited to “certain fundamental decisions regarding ... the most appropriate type of educational program for assisting a child with ... a handicap.” Id. The Court also stated that the applicable regulations sup ported this interpretation, and gave as an example of a fundamental change the transfer of a child from a special class in a regular school to a special school. Id. The Court noted that defining a change in placement to include any alterations in a program “would virtually cripple the Board’s ability to implement even minor discretionary changes within the educational programs provided for its students” and" } ]

[ { "docid": "20133777", "title": "", "text": "was signed by [Parent] that the one-to-one aide would be provided by the School District of Philadelphia.... In a conversation with [Parent], I made it clear that she would have to work with the district in terms of staffing for that position, because it was a school district position.” Hr’gTr. 178. . Mot. for Mandatory IDEA Stay-Put Inj. at 3; see also Hr'g Tr. 32, Dec. 16, 2010 (Parent testified that \"Mastery always allowed me to come in. There were many times that I came in and I assisted R.B. in the classroom. If we had a TSS that was running late or absent for that day, for the entire school year I played the role of the one on one assistant.”). . Hr’g Tr. 23, 33, 22, Dec. 16, 2010 (Parent testified that R.B. is unable to cross the street by herself). . Mr. Kurtz testified that he could only recall two occasions when R.B. spent the day without her Mother or the TSS worker. Hr’g Tr. 21, Dec. 17, 2010. . Hr'g Tr. 21, Dec. 17, 2010 (Mr. Kurtz testified that \"The extent of [Parent’s] support would be bringing her to school. She would escort her to her first class at which point typically she might have a short conversation with the teacher, a short conversation with myself and then she would leave the school.”); Hr'g Tr. 91, Dec. 17, 2010 (Ms. Haynes, R.B.’s former Special Education teacher, testified that although she never saw Parent act as an aide for R.B. during her class, she did observe Parent escort R.B. to class.). . Masteiy presented substantial evidence about their truancy and absenteeism policy, as recorded in their charter, student handbook, and \"whatever it takes\" contract, which each student is required to sign upon enrollment. See Def. Ex. 4 at 18. The contract specifies that if a student is absent more then six days in one semester, she may lose academic credit and states that \"Mastery does not permit 'excused' absences.’ ” . Hr'g Tr. 35-37, Dec. 16, 2010. R.B.'s attendance record reflects a history of extensive absenteeism and" }, { "docid": "20133768", "title": "", "text": "all rights under IDEA and its regulations — a body of laws which were enacted to “strip schools of the unilateral authority they had traditionally employed to exclude disabled students, from school.” Indeed, the sole purpose of the stay-put provision is to “prevent! ] local educational authorities from unilaterally changing a student’s existing educational program.” Mastery is correct in asserting that state law provides that a student must be disenrolled after ten consecutive absences. But that law does not exist in a vacuum; because R.B. is a student eligible for special education, Pennsylvania Education Code and the IDEA are also applicable. And to the extent that IDEA might conflict with that state law, it prevails under the Supremacy Clause of the Constitution. Ultimately, Mastery’s legal position is untenable. If Mastery seeks to remove her, it must follow the IDEA — it cannot unilaterally expel her from her educational placement during the pendency of proceedings. We therefore conclude that R.B.’s removal from Mastery in June 2009 violated the stay-put provision of the IDEA because proceedings were initiated by the Parent in April 2009 remained pending at that time and the disenrollment constituted a change in placement. 3. RB.’s Current Educational Placement Mastery implausibly argues that it was not R.B.’s then-current educational placement at the time she was disenrolled. “Because the term [stay-put] connotes preservation of the status quo, it refers to the operative placement actually functioning at the time the dispute first arises.” “If an IEP has been implemented then that program’s placement will be the one subject to the stay-put provision.” As this Court has noted, Mastery’s argument that location is not synonymous with program is unpersuasive; as R.B.’s LEA, Mastery bears ultimate responsibility for ensuring that R.B.’s program is implemented. Mastery’s argument that location is not a component of “educational placement” is not compelling. While “as a general matter, the location of the services is not conclusive in determining what constitutes the educational placement of the student,” the physical location of services “cannot be entirely divorced from the inquiry.” Instead, “ ‘[t]he meaning of ‘educational placement’ falls somewhere between" }, { "docid": "20133747", "title": "", "text": "and caused her to miss school frequently. Because of the variability of R.B.’s attendance and her medical needs, until April 2009, Mastery did not record attendance for R.B., nor did they pursue standard truancy protocols in response to R.B.’s frequent absences. In March 2009, a conflict developed between Mastery and Parent after Parent brought R.B. to school earlier then usual, and had difficulty locating R.B.’s classroom. Ms. Seaton, the principal of Mastery, testified that when Parent entered the building, she refused to sign in and then disrupted an ongoing class and a faculty meeting. After the incident, on March 6, 2009, Ms. Seaton sent Parent a letter limiting Parent’s entry into Mastery, informing her that she was “no longer welcome to enter our building unless [she had] a scheduled appointment with an administrator.” Parent interpreted the letter as a no-trespass notice, which made it impossible for her to transport R.B. to school and situate her in the classroom, and thus prevented R.B. from attending school. Soon after receiving the letter, Parent stopped bringing R.B. to school. Emails between Mastery personnel indicate that on April 28, 2009, Mastery — for the first time — began to mark R.B. absent. Although it is unclear what prompted the change in Mastery attendance procedures for R.B., a May 12 email about how to “code” R.B.’s attendance noted concerns that Parent’s “decision to keep [R.B.] out of school due to legal action [was] hurting our attendance figures.” On June 19, 2009, after sending three written communications to the parent, and pursuant to Pennsylvania State Law, Mastery unilaterally dropped R.B. from enrollment. There is no evidence that Mastery provided Parent with a copy of the Procedural Safeguards for special education students, attempted to convene a meeting of R.B.’s IEP team, or considered whether or not R.B.’s absences were a manifestation of her disability prior to dropping R.B. from the rolls. Since the disenrollment was unilateral, it occurred without the informed consent of Parent. R.B. has not been in school — nor has she received any special education services— since this dispute arose in March 2009. She" }, { "docid": "20133748", "title": "", "text": "school. Emails between Mastery personnel indicate that on April 28, 2009, Mastery — for the first time — began to mark R.B. absent. Although it is unclear what prompted the change in Mastery attendance procedures for R.B., a May 12 email about how to “code” R.B.’s attendance noted concerns that Parent’s “decision to keep [R.B.] out of school due to legal action [was] hurting our attendance figures.” On June 19, 2009, after sending three written communications to the parent, and pursuant to Pennsylvania State Law, Mastery unilaterally dropped R.B. from enrollment. There is no evidence that Mastery provided Parent with a copy of the Procedural Safeguards for special education students, attempted to convene a meeting of R.B.’s IEP team, or considered whether or not R.B.’s absences were a manifestation of her disability prior to dropping R.B. from the rolls. Since the disenrollment was unilateral, it occurred without the informed consent of Parent. R.B. has not been in school — nor has she received any special education services— since this dispute arose in March 2009. She is now nineteen years old, and will only qualify for special education services until age twenty-one. B. Procedural History On April 16, 2009, Parent, acting pro se, made her first attempt to initiate legal proceedings by filing a complaint against the District and Mastery in the Eastern District of Philadelphia. Her complaint was dismissed on August 28, 2009 due to procedural deficiencies. Just under a year later, on March 29, 2010, Parent filed a Complaint and a Request for a Preliminary Injunction and Temporary Restraining Order against Mastery and the District in the Philadelphia Court of Common Pleas. The Court dismissed her request after R.B.’s former counsel failed to appear at the hearing, and upon finding that the Plaintiff had failed to establish service of the Complaint. On October 5, 2010, Parent filed a Complaint for Due Process in the Pennsylvania Office for Dispute Resolution against Mastery and the District. After both Defendants moved to dismiss the complaints, the Hearing Officer asked Parent to respond and asked the parties to brief the issue of where" }, { "docid": "20133798", "title": "", "text": "numerous procedural protections which Mastery potentially ignored include the rights of parents and students to receive advance notice of any change in placement, 34 C.F.R. § 300.503(a)(1), an opportunity to discuss the School's proposal with the student’s team, 34 C.F.R. § 300.345 and to consent to or challenge the School’s proposed change, 34 C.F.R. § 300.504. . Under the statute, \"proceedings” refers to \"administrative and judicial proceedings.” 20 U.S.C. § 1415(j); see also Drinker, 78 F.3d at 863-64; Verhoeven v. Brunswick Sch. Comm., No. 98-2348, 1999 WL 721698, at *5 (1st Cir. Sept. 21, 1999). Parent filed her first Complaint in this case on May 13, 2009, claiming that because she was not allowed to escort her daughter to school, R.B. was unable to attend Mastery. Ballard v. Sch. Dist. of Phil, and Mastery Charter Sch., No. 09-1627 (doc. no. 3). R.B. was dropped from enrollment on June 19, 2009. Therefore, judicial proceedings were ongoing at the time Mastery disenrolled R.B. Notably, the summons in that case were not returned executed until July 29, 2010-after the date when R.B. was disenrolled. But as previously noted, a May 12th email between Mastery staff noted their awareness of ongoing \"legal action” by Parent. See PI. Ex. S-40. Further, the plain language of 1415(j)-which refers only to \"the pendency of any proceedings\"' — and makes no reference to the Parties' notice of such proceedings, along with Congress's intent to protect children with disabilities from unilateral exclusion of school, makes Mastery's notice of the ongoing proceedings irrelevant. . Drinker, 78 F.3d at 867 (quoting Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 (6th Cir.1990)). . Id. . Drinker, 78 F.3d at 867; see also Union Beach Bd. of Educ., 2009 WL 4042715 at *4 (looking to the last functioning IEP when the dispute arose to determine the student's \"current educational placement”); West Orange Board of Education, 2001 WL 1715787, at *4. . See Comb, 745 F.Supp.2d at 767, 2010 WL 4065486 at *10 (compiling cases and concluding that the “case law does not establish a per se rule that a ‘change in" }, { "docid": "20133789", "title": "", "text": "a significant effect on the child's learning experience). . Roselle Park Bd. of Educ., 2006 WL 3193915, at *10 (citing Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577, 1582 (D.C.Cir.1984)). . Id. at 153. . At least two administrative courts have considered the exact question presented under these facts and concluded that the unilateral disenrollment of a special education student is a change in placement that triggers the stay-put provision. See In Geraldo and the Springfield Pub. Schs., No. 06-4908 (Commw. of Mass. Bureau of Special Educ. Appeals, Jun. 18, 2007), available at www.doe.mass. edu/bsea/decisions/06-4908_06-5 8 63 .doc; In the Matter of Parent, On Behalf of Student v. Camptonville Acad., OAH Case No. 2008090659 (Off. of Admin. H'gs, State of Ca., March 18, 2009), available at http://www. documents.dgs.ca.gov/oah/seho_decisions/ 2008090659.pdf. . See, e.g., DeLeon, 747 F.2d at 154; (change in the method of transporting a seriously handicapped child to a special education facility is not a change in educational placement); Union Beach Bd. of Educ., 2009 WL 4042715, at *4 (\"one-to-one instruction as opposed to a small group resource room does not constitute a 'fundamental change, or elimination of [the student's] educational placement”). . Honig, 484 U.S. at 323, 108 S.Ct. 592; George A. v. Wallingford Swarthmore Sch. Dist., 655 F.Supp.2d 546, 552 (E.D.Pa.2009). . Cronin, 689 F.Supp. 197, 203; B.A.W. v. East Orange Bd. of Education, No. 10-4039, 2010 WL 3522096 (D.N.J. Aug. 31, 2010) (letter opinion) (\"The following key factors are undisputed ... graduation constitutes a change in placement.”). . Drinker, 78 F.3d at 864. . PL’s Mem. Law in Supp. of Mot. for Mandatory IDEA \"Stay Put\" Pendency Inj. at 8-9 (doc. no. 2). . Reply of Mastery Charter Sch., Pickett Campus, to PL's Mot. in Opp. to Def. Mastery Mot. to Dismiss, 1 (doc. no. 20) (\"Mastery Reply”). . 22 Pa. Code § 11.24 (a school must drop from enrollment any student who has 10 consecutive days of absence, unless the absences are legally excused). . Mastery Reply at 2. . Notably, 22 Pa.Code § 711.61(c) directs that \"[a]ny removal from the current educational" }, { "docid": "20133770", "title": "", "text": "the physical school attended by a child and the abstract goals of a child’s IEP.’ ” In George A, the District Court rejected Defendant’s argument that the location of services was irrelevant, and acknowledged student’s “extensive history” at a particular school as relevant to the determination of his current educational placement. Similarly, in M.K & R.K v. Roselle Bd. of Education, factors including the distance between classrooms, available facilities, and physical location were relevant to the determination of then-current educational placement. Here, we find that Mastery’s location is relevant to R.B.’s educational placement. As Parent testified, Mastery’s proximity to R.B.’s home (essentially across the street) mitigated R.B.’s difficulty getting to school, and provided needed access to R.B.’s doctor’s office in the case of medical emergency. In addition, Mastery is a small school, which R.B. is able to navigate because of her familiarity with the location. Finally, Mastery provided R.B. with instruction in very small classes, where she was given “lot[s] of individual attention.” Since R.B. was attending Mastery at the time the dispute arose, and because Mastery’s learning support program is R.B.’s identified placement in the most recent IEP, dated October 28, 2009, R.B.’s current educational placement is Mastery Charter School, Pickett Campus. Although the extent to which parent was a component of R.B.’s program remains unclear on this record, Mastery must continue to accommodate R.B.’s physical needs and ensure that R.B. is able to get to school and situate herself in the classroom. If that no longer entails permitting Parent to bring R.B. to school when a TSS is unavailable, Mastery is responsible for making alternative arrangements. Conclusion For all the reasons detailed above, Mastery must immediately reinstate R.B.’s enrollment during the pendency of the state proceedings, unless Mastery officials and Parent agree on a satisfactory alternative arrangement. Based on the foregoing discussion, the Court will GRANT Plaintiffs Motion for a Preliminary Stay-Put Injunction. Since Plaintiffs Complaint is solely for injunctive relief, and because the Court has found Plaintiffs complaint meritorious, Mastery’s Motion to Dismiss is DENIED. However, the Court finds that Plaintiff has failed to sufficiently allege a" }, { "docid": "20133796", "title": "", "text": "school district is responsible for providing comparable services during the pendency of legal proceedings in order to comply with the IDEA). . During the hearing, the Court asked Mr. Kurtz, the former Assistant Principal of Special Education and Student Services at the Mastery Charter School Pickett Campus, what precautions he took to ensure that Mastery complied with IDEA when disenrolling R.B. In reply, Kurtz stated that \"at the time R.B. was dropped it was annotated in the school computer network, so that when the school district checked their enrollment they would check, number one, Mastery no longer had this student. Number two, that the student was then counted as unassigned within the district’s own record keeping for students.” Even if Mastery were able to transfer its responsibility for R.B.’s education to the District, these precautions are clearly insufficient to notify the School District that it was now responsible for R.B.’s education — particularly because the attendance notification would not be reflected on the rolls until August, 2009. . In contrast, closing an educational facility to all students for budgetary reasons does not always constitute a change in educational placement under the stay-put provision. See Concerned Parents, 629 F.2d at 754; Tilton, 705 F.2d at 804. . Knight v. Dist. of Columbia, 877 F.2d 1025, 1029 (D.C.Cir.1989); McKenzie v. Smith, 771 F.2d 1527, 1533 (D.C.Cir.1985). . See 22 Pa.Code § 711, et seq. (mandating that charter schools assume the duty to ensure that children with disabilities enrolled in their school receive a free and appropriate public education, and incorporating all of the procedural safeguards set forth in the IDEA). . Honig, 484 U.S. at 323, 108 S.Ct. 592; See 34 C.F.R. § 300.503(a) (2006); 22 Pa.Code § 711 (charter schools situated within public school districts are distinct and separate LEAs). . Michael C., 202 F.3d at 650. . See George A., 655 F.Supp.2d at 552 (\"To the extent Defendants rely on Pennsylvania law ... such a law does not grant [the district] permission to violate the IDEA.”). Although the Court is not required to reach the merits of Parent's claim, the" }, { "docid": "20133765", "title": "", "text": "schedule to accommodate her individual needs. As the agency responsible for administering R.B.’s educational program, Mastery arguably had an affirmative duty to respond to the absences — potentially caused by R.B.’s disability — through educational intervention. If R.B.’s absences were caused by Mastery’s policy choice to require Parent to make an appointment in order to visit the school, Mastery was obligated to provide alternate arrangements so that R.B. could consistently get to school and to her classroom. If every school was able to rid itself of a problematic special education student or her parent by treating them exactly the same as a non-disabled student, as Mastery has done here, the protections of IDEA would be eviscerated. Finally, Mastery’s argument that this was merely a “change in location” is not compelling. It is true, as Mastery claims, that “the stay-put provision of the IDEA is not construed so narrowly as to mandate the student remain in the exact physical location where he or she was schooled at the time the dispute arose.” The LEA may, in its discretion, make changes in the physical location of a child’s program, if it does not significantly affect the student’s program. But although LEAs may exercise discretion over how and where they implement a student’s IEP, their primary obligation to implement the IEP remains. At the time Mastery improperly disenrolled R.B., it was — pursuant to its charter and state law — responsible for providing a FAPE to R.B; and as the party that effected the allegedly unlawful change in placement during the pendency of judicial proceedings, that responsibility continues. Mastery’s argument, that when it disenrolled R.B. the responsibility to provide a FAPE to R.B. shifted automatically to the School District of Philadelphia, has no support in fact or in law. Case law does not present a single ruling where an LEA’s responsibility for delivering FAPE to an individual student was vitiated simply by closing its doors to that student. Even where a child’s then-current educational placement is simply no longer available, the LEA retains responsibility for providing the student with placement in a similar" }, { "docid": "20133764", "title": "", "text": "the protections of the stay-put provision. In Cronin v. Board of Education, the court analogized graduation to long-term suspensions and expulsions because both “result[ed] in total exclusion of a child from his or her educational placement.” Noting that “[n]o change in placement seems quite so serious nor as worthy of parental involvement and procedural protections as the termination of placement in special education,” the Court found that a student’s removal from his high school program by graduation during the pendency of proceedings violated the stay-put provision. Like a graduation, indefinite suspension, or expulsion, the unilateral disenrollment of a special education student, which results in the absolute termination of a child’s special education program, and purportedly the termination of a LEA’s responsibility to deliver FAPE, is a change in placement. Although R.B.’s disenrollment was not necessarily a disciplinary action, it was precipitated by R.B.’s chronic absenteeism. The record — which includes letters authored by Mastery — provides ample documentation that R.B.’s disability and medical condition frequently caused her to miss school, and that Mastery modified R.B.’s schedule to accommodate her individual needs. As the agency responsible for administering R.B.’s educational program, Mastery arguably had an affirmative duty to respond to the absences — potentially caused by R.B.’s disability — through educational intervention. If R.B.’s absences were caused by Mastery’s policy choice to require Parent to make an appointment in order to visit the school, Mastery was obligated to provide alternate arrangements so that R.B. could consistently get to school and to her classroom. If every school was able to rid itself of a problematic special education student or her parent by treating them exactly the same as a non-disabled student, as Mastery has done here, the protections of IDEA would be eviscerated. Finally, Mastery’s argument that this was merely a “change in location” is not compelling. It is true, as Mastery claims, that “the stay-put provision of the IDEA is not construed so narrowly as to mandate the student remain in the exact physical location where he or she was schooled at the time the dispute arose.” The LEA may, in" }, { "docid": "20133795", "title": "", "text": "Cir.1983) (transfer from one school to another school with comparable program is not a change in educational placement), cert. denied, 465 U.S. 1006, 104 S.Ct. 998, 999, 79 L.Ed.2d 231 (1984); Concerned Parents & Citizens for Continuing Educ. at Malcolm X (PS 79) v. New York City Bd. of Educ., 629 F.2d 751, 754 (2d Cir.1980) (transfer from one school to another within same district with similar but less innovative programs not a change in educational placement within meaning of the IDEA), cert. denied 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981); Union Beach Bd. of Educ., 2009 WL 4042715 at *4 (\"one-to-one instruction as opposed to a small group resource room does not constitute a 'fundamental change, or elimination of' [the student's] educational placement”); Henry, 70 F.Supp. at 57 (finding that proposed IEP moving student from private middle school to public high school fundamentally altered child's educational placement when he became too old for the middle school). . See Roselle Park Bd. of Educ., 2006 WL 3193915 at *11 (holding that a school district is responsible for providing comparable services during the pendency of legal proceedings in order to comply with the IDEA). . During the hearing, the Court asked Mr. Kurtz, the former Assistant Principal of Special Education and Student Services at the Mastery Charter School Pickett Campus, what precautions he took to ensure that Mastery complied with IDEA when disenrolling R.B. In reply, Kurtz stated that \"at the time R.B. was dropped it was annotated in the school computer network, so that when the school district checked their enrollment they would check, number one, Mastery no longer had this student. Number two, that the student was then counted as unassigned within the district’s own record keeping for students.” Even if Mastery were able to transfer its responsibility for R.B.’s education to the District, these precautions are clearly insufficient to notify the School District that it was now responsible for R.B.’s education — particularly because the attendance notification would not be reflected on the rolls until August, 2009. . In contrast, closing an educational facility to" }, { "docid": "20133790", "title": "", "text": "opposed to a small group resource room does not constitute a 'fundamental change, or elimination of [the student's] educational placement”). . Honig, 484 U.S. at 323, 108 S.Ct. 592; George A. v. Wallingford Swarthmore Sch. Dist., 655 F.Supp.2d 546, 552 (E.D.Pa.2009). . Cronin, 689 F.Supp. 197, 203; B.A.W. v. East Orange Bd. of Education, No. 10-4039, 2010 WL 3522096 (D.N.J. Aug. 31, 2010) (letter opinion) (\"The following key factors are undisputed ... graduation constitutes a change in placement.”). . Drinker, 78 F.3d at 864. . PL’s Mem. Law in Supp. of Mot. for Mandatory IDEA \"Stay Put\" Pendency Inj. at 8-9 (doc. no. 2). . Reply of Mastery Charter Sch., Pickett Campus, to PL's Mot. in Opp. to Def. Mastery Mot. to Dismiss, 1 (doc. no. 20) (\"Mastery Reply”). . 22 Pa. Code § 11.24 (a school must drop from enrollment any student who has 10 consecutive days of absence, unless the absences are legally excused). . Mastery Reply at 2. . Notably, 22 Pa.Code § 711.61(c) directs that \"[a]ny removal from the current educational placement is a change of placement for a student who is identified with mental retardation.” . Chief among these requirements is that a school must provide \"written prior notice” to the parents of a child, whenever the local educational agency proposes to change a child's educational placement. 20 U.S.C.A. § 1415(b)(3). \"Subsection (c)(1) specifies that the notice required must contain a description of the proposed agency action, an explanation of why the agency proposes to take the action, and a description of the agency’s bases for taking such action, and a statement notifying the parents that they have due process rights under IDEA to challenge such an action. A parent must be given an opportunity to present a complaint 'with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free public education to such a child.’ ” Comb v. Benji’s Special Educ. Academy, Inc., 745 F.Supp.2d 755, No. 10-cv-3498, 2010 WL 4065486 (S.D.Tx. Oct. 15, 2010). Although Defendants presented three letters that were sent" }, { "docid": "20133761", "title": "", "text": "education program, eliminations result in the complete cessation of the delivery of special education services. Courts have found indefinite expulsions, graduation, and transfers from a school outside the district to those within the district all implicate the stay-put rule. Here, Plaintiff argues that Mastery twice changed R.B.’s placement. First, Parent asserts that when Mastery “banned” her from coming to its campus, she was no longer able to act as a one-to-one aide for R.B. In Parent’s view, that change eliminated a crucial related service necessary for R.B. to function in the classroom and constituted a “fundamental change.” Second, Parent argues more compellingly that Mastery terminated R.B.’s educational placement by unilaterally disenrolling her on June 19, 2009. In response, Mastery argues that “there has been no change in this student’ [sic] program or placement,” and claims that the true issue here “is not program or placement under the IDEA, but truancy.” Citing Pennsylvania Law, Mastery claims that it was obligated to disenroll R.B. — regardless of either her Special Education status or the dispute between the Parties — because R.B. had been absent for ten consecutive days. Mastery shifts the blame for R.B.’s disenrollment from itself to Parent, and claims that “[i]t was not Mastery that precluded the student’s attendance, it was the parent.” In addition, Mastery argues that R.B.’s disenrollment was only a “change in location” and not a change in educational placement. Because this Court now holds that Mastery’s unilateral disenrollment of R.B. was a change in placement, it need not decide herein the highly controverted issue of whether R.B.’s Parent was a “fundamental part” of R.B.’s program — or whether Mastery actually barred Parent from its campus. That said, if Mastery required Parent to make an appointment with an administrator in order to bring R.B. to school and situate her in the classroom every time a TSS worker was absent, they created an impossible situation. The record establishes that R.B.’s educational program as-implemented accommodated R.B.’s inability to independently arrive at school and situate herself in her classroom. Given the need for expedient decision-making in the context of a" }, { "docid": "20133763", "title": "", "text": "injunctive hearing, however, and the availability of an alternate grounds upon which our decision may rest, we decline to undertake that inquiry, which is better suited for the due process proceedings. The decision to disenroll R.B., however, is a different matter. Although the question of whether a disenrollment constitutes a change in placement is a matter of first impression, principles drawn from the body of law governing disciplinary-based exclusions and graduations provide a useful analytical framework. In both graduation and disciplinary exclusion cases, any change in a special education child’s placement must comply with the procedural safeguards — regardless of what outcome state or local laws might dictate for a special education student’s non-disabled peers. For instance, the disciplinary removal of a student with a disability is construed as a change in placement, and may require a school to evaluate the student, conduct a team meeting, propose an alternate special education plan, and provide special education services pending an agreed upon placement. Similarly, courts have held that graduation is a “change in placement” which triggers the protections of the stay-put provision. In Cronin v. Board of Education, the court analogized graduation to long-term suspensions and expulsions because both “result[ed] in total exclusion of a child from his or her educational placement.” Noting that “[n]o change in placement seems quite so serious nor as worthy of parental involvement and procedural protections as the termination of placement in special education,” the Court found that a student’s removal from his high school program by graduation during the pendency of proceedings violated the stay-put provision. Like a graduation, indefinite suspension, or expulsion, the unilateral disenrollment of a special education student, which results in the absolute termination of a child’s special education program, and purportedly the termination of a LEA’s responsibility to deliver FAPE, is a change in placement. Although R.B.’s disenrollment was not necessarily a disciplinary action, it was precipitated by R.B.’s chronic absenteeism. The record — which includes letters authored by Mastery — provides ample documentation that R.B.’s disability and medical condition frequently caused her to miss school, and that Mastery modified R.B.’s" }, { "docid": "20133778", "title": "", "text": "21, Dec. 17, 2010 (Mr. Kurtz testified that \"The extent of [Parent’s] support would be bringing her to school. She would escort her to her first class at which point typically she might have a short conversation with the teacher, a short conversation with myself and then she would leave the school.”); Hr'g Tr. 91, Dec. 17, 2010 (Ms. Haynes, R.B.’s former Special Education teacher, testified that although she never saw Parent act as an aide for R.B. during her class, she did observe Parent escort R.B. to class.). . Masteiy presented substantial evidence about their truancy and absenteeism policy, as recorded in their charter, student handbook, and \"whatever it takes\" contract, which each student is required to sign upon enrollment. See Def. Ex. 4 at 18. The contract specifies that if a student is absent more then six days in one semester, she may lose academic credit and states that \"Mastery does not permit 'excused' absences.’ ” . Hr'g Tr. 35-37, Dec. 16, 2010. R.B.'s attendance record reflects a history of extensive absenteeism and tardiness. From 1998 to 2007, R.B.'s excused and unexcused absences ranged from twenty-one to sixty-nine, and she was also frequently marked \"late.” Once Mastery assumed control of Pickett, however, R.B.’s school records record neither late arrivals nor absences. PL Ex. 28. . Pi. Ex. S-33 (April 18, 2009 e-mail between Mastery staff noting that R.B. is “always counted as present due to a medical issue”). . Hr'g Tr. 65, Dec. 17, 2010. . Pl. Ex. 2 at 1. . PL Ex. S-36. . PL Ex. S-40 at 2 (May 12, 2009 email between Mastery staff). . Under 22 Pa.Code § 11.24, a school must drop from enrollment any student who has ten consecutive days of absence. . R.B. v. The Sch. Dist. of Phila., et al., no. 09-cv-1627 (doc. no. 3) (On April 16, Parent entered a Motion to Proceed In Forma Pauperis (doc. no. 1); she did not enter her Complaint until May 13, 2009 (doc. no. 3)) (Parent's first complaint sought \"action against the School District of Philadelphia and the Mastery Charter school" }, { "docid": "20133769", "title": "", "text": "initiated by the Parent in April 2009 remained pending at that time and the disenrollment constituted a change in placement. 3. RB.’s Current Educational Placement Mastery implausibly argues that it was not R.B.’s then-current educational placement at the time she was disenrolled. “Because the term [stay-put] connotes preservation of the status quo, it refers to the operative placement actually functioning at the time the dispute first arises.” “If an IEP has been implemented then that program’s placement will be the one subject to the stay-put provision.” As this Court has noted, Mastery’s argument that location is not synonymous with program is unpersuasive; as R.B.’s LEA, Mastery bears ultimate responsibility for ensuring that R.B.’s program is implemented. Mastery’s argument that location is not a component of “educational placement” is not compelling. While “as a general matter, the location of the services is not conclusive in determining what constitutes the educational placement of the student,” the physical location of services “cannot be entirely divorced from the inquiry.” Instead, “ ‘[t]he meaning of ‘educational placement’ falls somewhere between the physical school attended by a child and the abstract goals of a child’s IEP.’ ” In George A, the District Court rejected Defendant’s argument that the location of services was irrelevant, and acknowledged student’s “extensive history” at a particular school as relevant to the determination of his current educational placement. Similarly, in M.K & R.K v. Roselle Bd. of Education, factors including the distance between classrooms, available facilities, and physical location were relevant to the determination of then-current educational placement. Here, we find that Mastery’s location is relevant to R.B.’s educational placement. As Parent testified, Mastery’s proximity to R.B.’s home (essentially across the street) mitigated R.B.’s difficulty getting to school, and provided needed access to R.B.’s doctor’s office in the case of medical emergency. In addition, Mastery is a small school, which R.B. is able to navigate because of her familiarity with the location. Finally, Mastery provided R.B. with instruction in very small classes, where she was given “lot[s] of individual attention.” Since R.B. was attending Mastery at the time the dispute arose, and" }, { "docid": "20133766", "title": "", "text": "its discretion, make changes in the physical location of a child’s program, if it does not significantly affect the student’s program. But although LEAs may exercise discretion over how and where they implement a student’s IEP, their primary obligation to implement the IEP remains. At the time Mastery improperly disenrolled R.B., it was — pursuant to its charter and state law — responsible for providing a FAPE to R.B; and as the party that effected the allegedly unlawful change in placement during the pendency of judicial proceedings, that responsibility continues. Mastery’s argument, that when it disenrolled R.B. the responsibility to provide a FAPE to R.B. shifted automatically to the School District of Philadelphia, has no support in fact or in law. Case law does not present a single ruling where an LEA’s responsibility for delivering FAPE to an individual student was vitiated simply by closing its doors to that student. Even where a child’s then-current educational placement is simply no longer available, the LEA retains responsibility for providing the student with placement in a similar program during the pendency of proceedings. The line of cases relied on by Mastery are inapposite, because most “program not placement” cases involve proposed changes of schools or classrooms (over which the LEA retains responsibility). Without exception, each case in which the court stresses the importance of program over placement arises where a LEA proposes an inter-district transfer between classes or schools. There is no case where an LEA has successfully cited “program over placement,” to justify its refusal to fulfill its responsibilities under FAPE where no alternative location has been provided by the school district for IEP program implementation. Here, Mastery claims that because the District has similar programming options available for R.B., the District then assumes responsibility for R.B.’s educational placement. Mastery’s attempt to evade its obligations under the IDEA by passing the buck — in this case, a special-needs student’s education — to the District is troubling. As a Charter School, Mastery is bound by all the obligations of IDEA. Children with disabilities who attend public charter schools and their parents retain" }, { "docid": "20133779", "title": "", "text": "tardiness. From 1998 to 2007, R.B.'s excused and unexcused absences ranged from twenty-one to sixty-nine, and she was also frequently marked \"late.” Once Mastery assumed control of Pickett, however, R.B.’s school records record neither late arrivals nor absences. PL Ex. 28. . Pi. Ex. S-33 (April 18, 2009 e-mail between Mastery staff noting that R.B. is “always counted as present due to a medical issue”). . Hr'g Tr. 65, Dec. 17, 2010. . Pl. Ex. 2 at 1. . PL Ex. S-36. . PL Ex. S-40 at 2 (May 12, 2009 email between Mastery staff). . Under 22 Pa.Code § 11.24, a school must drop from enrollment any student who has ten consecutive days of absence. . R.B. v. The Sch. Dist. of Phila., et al., no. 09-cv-1627 (doc. no. 3) (On April 16, Parent entered a Motion to Proceed In Forma Pauperis (doc. no. 1); she did not enter her Complaint until May 13, 2009 (doc. no. 3)) (Parent's first complaint sought \"action against the School District of Philadelphia and the Mastery Charter school for the violation of my daughter, [R.B.’s] civil rights, as well as ... violation of FAPE,” and stated that “[t]he nature of my daughter's disability makes it impossible for her to go to school unaccompanied.”). . Id. (doc. no. 12) (granting Defendant Mastery and the District’s Motion to Dismiss as unopposed). The court did not conduct a hearing in this matter, nor did it rule on the merits of this case. Parent also filed a complaint with Office for Civil Rights, which was dismissed on June 26, 2009 because the same issue was the subject of a pending litigation. PL Ex. 6. . R.B. v. Master Charter School, No. 100305421 (Mar. 29, 2010) (Ct. Com. PL Phi-la.) (Mar. 29, 2010). . PL’s Ex. 1 (Order Regarding Pendency, The District’s Mot. to Dismiss, and Mastery’s Mot. to Dismiss, ODR No. 01632/10-11 JS & ODR No. 01633/10-11 JS (Nov. 1, 2010)). On December 1, 2010, the Due Process Officer convened its first administrative hearing. The due process proceedings did not conclude that day, and the hearing has" }, { "docid": "20133797", "title": "", "text": "all students for budgetary reasons does not always constitute a change in educational placement under the stay-put provision. See Concerned Parents, 629 F.2d at 754; Tilton, 705 F.2d at 804. . Knight v. Dist. of Columbia, 877 F.2d 1025, 1029 (D.C.Cir.1989); McKenzie v. Smith, 771 F.2d 1527, 1533 (D.C.Cir.1985). . See 22 Pa.Code § 711, et seq. (mandating that charter schools assume the duty to ensure that children with disabilities enrolled in their school receive a free and appropriate public education, and incorporating all of the procedural safeguards set forth in the IDEA). . Honig, 484 U.S. at 323, 108 S.Ct. 592; See 34 C.F.R. § 300.503(a) (2006); 22 Pa.Code § 711 (charter schools situated within public school districts are distinct and separate LEAs). . Michael C., 202 F.3d at 650. . See George A., 655 F.Supp.2d at 552 (\"To the extent Defendants rely on Pennsylvania law ... such a law does not grant [the district] permission to violate the IDEA.”). Although the Court is not required to reach the merits of Parent's claim, the numerous procedural protections which Mastery potentially ignored include the rights of parents and students to receive advance notice of any change in placement, 34 C.F.R. § 300.503(a)(1), an opportunity to discuss the School's proposal with the student’s team, 34 C.F.R. § 300.345 and to consent to or challenge the School’s proposed change, 34 C.F.R. § 300.504. . Under the statute, \"proceedings” refers to \"administrative and judicial proceedings.” 20 U.S.C. § 1415(j); see also Drinker, 78 F.3d at 863-64; Verhoeven v. Brunswick Sch. Comm., No. 98-2348, 1999 WL 721698, at *5 (1st Cir. Sept. 21, 1999). Parent filed her first Complaint in this case on May 13, 2009, claiming that because she was not allowed to escort her daughter to school, R.B. was unable to attend Mastery. Ballard v. Sch. Dist. of Phil, and Mastery Charter Sch., No. 09-1627 (doc. no. 3). R.B. was dropped from enrollment on June 19, 2009. Therefore, judicial proceedings were ongoing at the time Mastery disenrolled R.B. Notably, the summons in that case were not returned executed until July 29, 2010-after" }, { "docid": "20133767", "title": "", "text": "program during the pendency of proceedings. The line of cases relied on by Mastery are inapposite, because most “program not placement” cases involve proposed changes of schools or classrooms (over which the LEA retains responsibility). Without exception, each case in which the court stresses the importance of program over placement arises where a LEA proposes an inter-district transfer between classes or schools. There is no case where an LEA has successfully cited “program over placement,” to justify its refusal to fulfill its responsibilities under FAPE where no alternative location has been provided by the school district for IEP program implementation. Here, Mastery claims that because the District has similar programming options available for R.B., the District then assumes responsibility for R.B.’s educational placement. Mastery’s attempt to evade its obligations under the IDEA by passing the buck — in this case, a special-needs student’s education — to the District is troubling. As a Charter School, Mastery is bound by all the obligations of IDEA. Children with disabilities who attend public charter schools and their parents retain all rights under IDEA and its regulations — a body of laws which were enacted to “strip schools of the unilateral authority they had traditionally employed to exclude disabled students, from school.” Indeed, the sole purpose of the stay-put provision is to “prevent! ] local educational authorities from unilaterally changing a student’s existing educational program.” Mastery is correct in asserting that state law provides that a student must be disenrolled after ten consecutive absences. But that law does not exist in a vacuum; because R.B. is a student eligible for special education, Pennsylvania Education Code and the IDEA are also applicable. And to the extent that IDEA might conflict with that state law, it prevails under the Supremacy Clause of the Constitution. Ultimately, Mastery’s legal position is untenable. If Mastery seeks to remove her, it must follow the IDEA — it cannot unilaterally expel her from her educational placement during the pendency of proceedings. We therefore conclude that R.B.’s removal from Mastery in June 2009 violated the stay-put provision of the IDEA because proceedings were" } ]

[ { "docid": "19210149", "title": "", "text": "380-84, 111 S.Ct. at 1354-56 (rejecting suggestion that immunity from anticompetitive injuries flowing from government action does not attach when action is the result of conspiracy between defendants and governmental officials); Noerr, 365 U.S. at 145, 81 S.Ct. at 533 (applying petitioning immunity to private party that had “deliberately deceived the public and public officials” in lobbying campaign aimed at effecting enactment of anticompetitive legislation). Because the only anticompetitive injuries that Sessions complains of are the direct result of governmental action, we conclude that Joor is shielded from liability for these injuries by petitioning immunity. II. The State Law Claim Joor asserts that the district court erred in ruling that Sessions was entitled to judgment on its claim that Joor had committed the common-law tort of intentional interference with prospective economic advantage. According to Joor, any conduct shielded by the doctrine of petitioning immunity in the federal antitrust context is perforce shielded in the state common-law context. We need not decide whether antitrust petitioning immunity and immunity under state tort law are perfectly coextensive. See Blank v. Kirwan, 39 Cal.3d 311, 216 Cal.Rptr. 718, 703 P.2d 58 (1985) (citing separate grounds for barring recovery on antitrust claims and tortious interference claims); Willis v. Santa Ana Community Hospital, 58 Cal.2d 806, 809, 26 Cal.Rptr. 640, 642, 376 P.2d 568, 570 (1962) (holding that state antitrust statutes do not supersede all common-law commercial torts). We are convinced that, in the circumstances of this case, the California Supreme Court would hold Joor immune from damages for interference with prospective economic advantage. The California Supreme Court has carefully considered the relationship of antitrust petitioning immunity to the tort of interference with prospective economic advantage. In Pacific Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal.3d 1118, 270 Cal.Rptr. 1, 791 P.2d 587 (Cal.1990) (“PG & E”), the Court dealt with a claim that the defendant had induced a governmental agency to initiate litigation seeking to avoid a contract to supply hydroelectric power to the plaintiff PG & E. The Court held that “to permit [this] cause of action to be stated when" } ]

[ { "docid": "12272433", "title": "", "text": "prospective economic advantage). News argues that there is insufficient evidence in the record to establish that News engaged in independent wrongful conduct. A plaintiff seeking to recover damages for interference with prospective economic advantage must plead and prove that the defendant’s conduct was “wrongful by some legal measure other than the fact of interference itself.” Id. 131 Cal. Rptr.2d 29, 63 P.3d at 950 (quoting Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 438, 442, 902 P.2d 740 (1995)). The district court instructed the jury that conduct is wrongful “if it is proscribed by some con stitutional, statutory, regulatory, common law, or other determinable legal standard.” Because the jury’s verdict on Theme’s Cartwright Act claim was supported by substantial evidence in the record, this element is satisfied. C News argues that regardless of whether the jury’s verdict was supported by substantial evidence in the record, a new trial is required because its substantial rights were affected by an evidentiary error. Specifically, News argues that the testimony of Theme’s president as to the internal decisions of packaged goods companies regarding whether to do repeat business with Theme lacked foundation and was speculative. In addition, News argues that the testimony of Theme’s president was the only evidence Theme supplied on the element of causation, and that therefore its admission could not have been harmless error. To succeed on this issue, News must establish that the district court abused its discretion by allowing the contested testimony. Obrey, 400 F.3d at 693. This it cannot do. While Theme’s president testified repeatedly that he was under the impression that Theme had a good relationship with the packaged goods companies, and that he could think of no reason the packaged goods companies would not continue to do business with Theme, he did not actually comment on the internal decisions of packaged goods companies or their executives. This testimony was neither lacking in foundation nor speculative. Had the district court’s decision to admit the testimony of Theme’s president been error, a new trial would have been appropriate only if the verdict" }, { "docid": "10361475", "title": "", "text": "by the parties’ papers, the court will address both of plaintiffs intentional interference claims. A. Plaintiff’s Intentional Interference with Contractual Relations Claim To plead an interference with contractual relations claim, plaintiff must allege: 1) the existence of a valid contract between plaintiff and a third party; 2) the defendant’s knowledge of the contract; 3) the defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; 4) actual breach or disruption of the contractual relationship; and 5) resulting damage. Quelimane Co. v. Stewart Title, 19 Cal.4th 26, 55, 77 Cal.Rptr.2d 709, 960 P.2d 513 (1998) (holding “wrongfulness” is not an additional element in an interference with contract claim). Plaintiff makes eonclusory allegations that valid “contracts” exist between itself and an unspecified third party. See Compl. 1f 77. Absent notice to the defendants of some facts surrounding the type or nature of the “contracts” their conduct allegedly interfered with, the court must dismiss this claim with leave to amend. B. Plaintiff’s Intentional Interference with Economic Advantage Claim To state a claim for intentional interference with economic advantage, plaintiff must allege: 1) an existing economic relationship or one “containing the probability of future economic benefit”; 2) knowledge by the defendant of the relationship; 3) acts by defendant designed to disrupt the relationship; 4) actual disruption of the relationship; 5) damages proximately caused by the acts of the defendant. Della Penna v. Toyota Motor Sales, U.S.A., 11 Cal.4th 376, 380 n. 1 & 392-93, 45 Cal.Rptr.2d 436, 902 P.2d 740 (1995). Significantly, the act must be “wrongful by some legal measure other than the fact of interference itself.” Id. at 393, 45 Cal.Rptr.2d 436, 902 P.2d 740. Thus, it is “plaintiff’s] burden to prove, as an element of the cause of action itself, that the defendant’s] conduct was independently wrongful.” Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Vill. Square Venture Partners, 52 Cal.App.4th 867, 881, 60 Cal.Rptr.2d 830 (1997). Again, the court finds that plaintiff makes eonclusory allegations that economic relationships between plaintiff and another exist that “contain[] a probable future economic benefit or advantage to" }, { "docid": "582408", "title": "", "text": "of Cal. Law, Torts, pp 661-62 (9th ed.1988)). Nonetheless, “First Amendment limitations are applicable to all claims, of whatever label, whose gravamen is the alleged injurious falsehood of a statement[]” Blatty v. New York Times Co., 42 Cal.3d 1033, 1045, 232 Cal.Rptr. 542, 728 P.2d 1177 (1986). a. First Amendment Principles In defamation actions, the First Amendment requires the plaintiff to establish that the statement on which the claim is based is “of and concerning” the plaintiff. Id. at 1042, 232 Cal.Rptr. 542, 728 P.2d 1177; see also New York Times v. Sullivan, 376 U.S. 254, 288-89, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). To satisfy this requirement, “the plaintiff must effectively plead that the statement at issue either expressly mentions him or refers to him by reasonable implication.” Id. at 1046, 232 Cal.Rptr. 542, 728 P.2d 1177 (finding failure to include Blatty’s novel on best-seller list was not statement of and concerning Blatty). b. Vicarious Defamation and Disparagement The allegedly defamatory and disparaging statements underlying plaintiffs’ claims axe only “of and concerning” the Trooper and, arguably, the manufacturer of the Trooper, Isuzu Motors Ltd., a Japanese Corporation. Looking at the statements in context, and considering the totality of the circumstances, the statements at issue all involve CU’s allegations that the Trooper is dangerous because of the way it was manufactured. See Couch v. San Juan Unified School Dist., 33 Cal.App.4th 1491, 1501, 39 Cal.Rptr.2d 848 (3d Dist.1995) (statements must be considered in context under totality of circumstances). None of defendant’s statements are about the Distributor or the Importer. See Simmons Ford v. Consumers Union, 516 F.Supp. 742 (S.D.N.Y.1981) (First Amendment considerations preclude vicarious liability by anyone other than manufacturer in product disparagement suit); American Suzuki Motor Corp. v. Consumers Union of the United States, Inc, CV 96-340 AHS (EEx) “Order Granting Defendant’s Motion to Dismiss; Order Permitting Filing of Amended Complaint” (Feb. 3, 1997). Defendant’s publication of the Distributor’s customer relations number in the context of its criticism of the Trooper cannot be reasonably understood to suggest that the Distributor is responsible for the supposed roll-over risk presented by" }, { "docid": "6420435", "title": "", "text": "relationship, under both Iowa and California law, are the following: (1) the plaintiff had a prospective contractual or business relationship; (2) the defendant knew of the prospective relationship; (3) the defendant intentionally and improperly interfered with the relationship; (4) the defendant’s interference caused the relationship to fail to materialize; and (5) the amount of resulting damages. See, e.g., Blumenthal Inv. Trusts v. City of West Des Moines, 636 N.W.2d 255, 269 (Iowa 2001); accord Westside Center Associates v. Safeway Stores 23, Inc., 42 Cal.App.4th 507, 521-522, 49 Cal.Rptr.2d 793 (1996). Thus, both claims have as an element the impropriety or wrongfulness of the defendant’s conduct. That impropriety or wrongfulness must be “by some legal measure other than the fact of interference itself.” Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 902 P.2d 740, 751 (1995); accord Compiano v. Hawkeye Bank & Trust, 588 N.W.2d 462, 464 (Iowa 1999) (a defendant’s conduct is improper only if it is undertaken with “the sole or predominant purpose to injure or financially destroy” another, and is not “improper” if it is a necessary consequence of actions taken for a different purpose); Restatement (Second) of ToRts § 766B cmt. d & § 767. 3. The record in light of governing law Although IANR may have generated genuine issues of material fact on other elements of its tortious interference claim, either as to interference with existing or prospective contractual or business relationships, it has not generated any genuine issues of material fact that the alleged “interference” by Helm was, in some legal sense, “wrongful” apart from the interference. See Della Penna, 45 Cal.Rptr.2d 436, 902 P.2d at 751; Compiano, 588 N.W.2d at 464; Restatement (Second) of ToRts § 766B cmt. d. & § 767. IANR asserts only that there are genuine issues of material fact as to Helm’s knowledge of IANR’s need for 2,000 horsepower locomotives and its failure to provide them, but not that Helm failed to supply locomotives supplying the required horsepower to harm, IANR. Indeed, the court has reiterated that providing locomotives capable of providing 2,000 horsepower" }, { "docid": "12272432", "title": "", "text": "Theme’s Cartwright Act claim. B The district court did not err in denying News’ motion for JMOL on Theme’s negligent interference with prospective economic advantage claim. The district court instructed the jury that to establish negligent interference with prospective economic advantage, Theme would have to prove by a preponderance of the evidence that: (1) Theme and a particular packaged goods company were in an economic relationship that probably would have resulted in an economic benefit to Theme; (2) News knew of the relationship; (3) News knew or should have known that the relationship would be disrupted if it failed to act with reasonable care; (4) News failed to act with reasonable care; (5) News engaged in independent wrongful conduct apart from the interference itself; (6) the relationship was actually disrupted; (7) Theme was harmed; and (8) News’ wrongful conduct was a substantial factor in causing Theme’s harm. See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 131 Cal.Rptr.2d 29, 63 P.3d 937, 950 (2003) (identifying elements of the tort of intentional interference with prospective economic advantage). News argues that there is insufficient evidence in the record to establish that News engaged in independent wrongful conduct. A plaintiff seeking to recover damages for interference with prospective economic advantage must plead and prove that the defendant’s conduct was “wrongful by some legal measure other than the fact of interference itself.” Id. 131 Cal. Rptr.2d 29, 63 P.3d at 950 (quoting Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 438, 442, 902 P.2d 740 (1995)). The district court instructed the jury that conduct is wrongful “if it is proscribed by some con stitutional, statutory, regulatory, common law, or other determinable legal standard.” Because the jury’s verdict on Theme’s Cartwright Act claim was supported by substantial evidence in the record, this element is satisfied. C News argues that regardless of whether the jury’s verdict was supported by substantial evidence in the record, a new trial is required because its substantial rights were affected by an evidentiary error. Specifically, News argues that the testimony of Theme’s president" }, { "docid": "22578279", "title": "", "text": "privilege,” which protects one from liability for inducing a third person not to enter into a prospective contractual relation with a business competitor. The privilege applies where (a) the relation [between the competitor and third person] concerns a matter involved in the competition between the actor and the competitor, and (b) the actor does not employ improper means, and (c) the actor does not intend thereby to create or continue an illegal restraint of competition, and (d) the actor’s purpose is at least in part to advance his interest in his competition with the other. Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Vill. Square Venture Partners, 52 Cal.App.4th 867, 880, 60 Cal.Rptr.2d 830 (1997) (internal quotation marks and citations omitted). See also Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 46 Cal.Rptr.2d 436, 902 P.2d 740, 751 (Cal.1995) (holding that plaintiff who seeks to recover for an alleged interference with prospective economic relations must prove that the defendant “engaged in conduct that was wrongful by some legal measure other than the fact of interference itself.”). The competition privilege clearly applies to MFS’ and Scotts’ actions as alleged in the amended complaint, and nothing about their competitive conduct was wrongful. We hold that the district court properly dismissed the claims against MFS and Scott for intentional interference with a prospective economic advantage. E. Dismissal of counterclaims without prejudice Appellants allege — in one paragraph without citation to the record or authority — that the district court abused its discretion in dismissing appellees’ indemnity counterclaims without prejudice. Appellants contend that “[t]he jury should have been informed that those claims had not merely vanished but that Defendants might refile and seek $3.5 million in attorneys fees.... ” Appellants’ argument is frivolous. The decision to grant a voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2) is addressed.to the sound discretion of the district court. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir.1980). A dismissal without prejudice pursuant to Rule 41(a)(2) leaves the parties where they would have stood had the lawsuit never been brought." }, { "docid": "582425", "title": "", "text": "claim for intentional interference with prospective economic advantage, a plaintiff must plead: “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” LiMandri v. Judkins, 52 Cal.App.4th 326, 339, 60 Cal.Rptr.2d 539 (4th Dist.1997). “[A] plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant’s interference was wrongful ‘by some measure beyond the fact of the interference itself.’ ” Della Penna v. Toyota Motor Sales, U.S.A., 11 Cal.4th 376, 393, 45 Cal.Rptr.2d 436, 902 P.2d 740 (1995). Here, plaintiff Isuzu Motors, Ltd. simply has not alleged such interference, particularly in light of the fact that it appears from the allegations that the manufacturer deals exclusively with the importer, the importer deals exclusively with the distributor, and the distributor deals with dealers and does not deal directly with consumers. Accordingly, the Twenty-fourth claim for relief is dismissed without prejudice. Plaintiff may amend the claim if possible, keeping in mind the strictures of Fed.R.Civ.P. 11. 7. Declaratory Relief Under the Declaratory Judgment Act, 28 U.S.C. § 2201, federal district courts “may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” Plaintiffs claim for declaratory relief does not seek a declaration of rights and other legal relations. Instead, plaintiff requests that the Court use the power granted by the Declaratory Judgment Act to resolve a scientific dispute regarding the safety of the Isuzu Trooper. See Leonardini, 216 Cal.App.3d at 580, 264 Cal.Rptr. 883 (in malicious prosecution action, finding defendant had improperly sought declaratory relief in federal court to resolve scientific dispute that did not concern legal rights or relations of the parties Declaratory relief is not available in federal court for this purpose, and defendant’s" }, { "docid": "5517649", "title": "", "text": "Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 582 P.2d 1365, 1371 (1978)). Our analysis in Part III, Intentional Interference with Contract (Count I), is applicable to the question of whether CRST properly alleged the elements of interference with prospective economic advantage. CRST’s contracts with its employees created an “economic relationship” because this is how CRST claims it expected to recoup the costs of training those employees. Werner was allegedly aware of this relationship and allegedly performed acts intended to, and that did in fact, disrupt the economic relationship. Finally, CRST allegedly experienced harm from these acts. See supra Part III. The more difficult question is whether CRST has alleged an act, independently wrongful, to support its claim of interference with prospective economic advantage. See Della Penna, 11 Cal.4th at 392-93, 45 Cal.Rptr.2d 436, 902 P.2d 740. In Korea Supply, 29 Cal.4th 1134, 131 Cal.Rptr.2d 29, 63 P.3d 937, the California Supreme Court provided guidance as to what constitutes an independently wrongful act. There, a company representing a military equipment manufacturer sued its client’s competitor for ruining the client’s chances of winning a contract bid by improperly soliciting a potential customer with bribes and sexual favors. Id. at 1141-42, 131 Cal.Rptr.2d 29, 63 P.3d 937. The complaint alleged conspiracy to interfere with prospective economic advantage, intentional interference with prospective economic advantage, and violation of the UCL. Id. at 1142, 131 Cal.Rptr.2d 29, 63 P.3d 937. The trial court sustained a general demurrer to the complaint on the basis the complaint did not state a cause of action under California law. Id. at 1142-43, 131 Cal.Rptr.2d 29, 63 P.3d 937. The Court of Appeal reversed, holding the plaintiff did not need to plead that defendant acted with the specific intent to interfere with plaintiffs prospective economic advantage. Id. at 1143, 131 Cal.Rptr.2d 29, 63 P.3d 937. The California Supreme Court affirmed this holding. Id. at 1156-57, 131 Cal.Rptr.2d 29, 63 P.3d 937. It also held that the “independently wrongful act” requirement was satisfied by the acts of solicitation pleaded by plaintiff, which were unlawful under the Foreign Corrupt Practices Act," }, { "docid": "10361476", "title": "", "text": "interference with economic advantage, plaintiff must allege: 1) an existing economic relationship or one “containing the probability of future economic benefit”; 2) knowledge by the defendant of the relationship; 3) acts by defendant designed to disrupt the relationship; 4) actual disruption of the relationship; 5) damages proximately caused by the acts of the defendant. Della Penna v. Toyota Motor Sales, U.S.A., 11 Cal.4th 376, 380 n. 1 & 392-93, 45 Cal.Rptr.2d 436, 902 P.2d 740 (1995). Significantly, the act must be “wrongful by some legal measure other than the fact of interference itself.” Id. at 393, 45 Cal.Rptr.2d 436, 902 P.2d 740. Thus, it is “plaintiff’s] burden to prove, as an element of the cause of action itself, that the defendant’s] conduct was independently wrongful.” Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Vill. Square Venture Partners, 52 Cal.App.4th 867, 881, 60 Cal.Rptr.2d 830 (1997). Again, the court finds that plaintiff makes eonclusory allegations that economic relationships between plaintiff and another exist that “contain[] a probable future economic benefit or advantage to the plaintiff.” See id. at 380 n. 1, 45 Cal.Rptr.2d 436, 902 P.2d 740. “[A]n essential element of the tort of interference with prospective business advantage is the existence of a business relationship with which the tortfeasor interfered. Although this need not be a contractual relationship, an existing relationship is required.” Roth v. Rhodes, 25 Cal.App.4th 530, 546, 30 Cal.Rptr.2d 706 (1994) (holding that motion for judgment on the pleadings was properly granted because plaintiff alleged an existing relationship only with speculative “future patients”). Similarly here, the complaint alleges no specific existing or prospective relationships and relies on conclusory language that merely repeat the elements of the tort. Such vague allegations do not satisfy federal pleading requirements because defendants are not on notice of which relationships they allegedly disrupted. See Conley, 355 U.S. at 45-46, 78 S.Ct. 99. Furthermore, plaintiff fails to allege wrongful conduct on behalf of defendants to satisfy the elements of the tort. Given the court’s dismissal of plaintiffs Lanham Act claim for false advertising with leave to amend, plaintiff has not" }, { "docid": "16395423", "title": "", "text": "no injury to a business or property interest was actually alleged. We agree with the Seventh Circuit. Without a harm to a specific business or property interest — a categorical inquiry typically determined by reference to state law — there is no injury to business or property within the meaning of RICO. Contrary to the dissent’s suggestion, dissent at 914, our approach does not create RICO liability for every loss of wages resulting from a personal injury. Doe, unlike Oscar, suffered some tangible financial losses as a result of her emotional distress, but, like Oscar, failed to allege harm to any property interest valid under state law. Diaz, on the other hand, has alleged both the property interest and the financial loss. The harms he alleges amount to intentional interference with contract and interference with prospective business relations, both of which are established torts under California law. See Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 902 P.2d 740, 750-51 (1995) (discussing torts of “interference with an existing business contract” and “interference with commercial relations”); see also Restatement (Second) of Torts § 766A & cmt. e (intentional interference with another’s performance of his own contract); id. § 766B & cmts. c-d (intentional interference with prospective contractual relations); Reeves v. Hanlon, 33 Cal.4th 1140, 17 Cal.Rptr.3d 289, 95 P.3d 513, 517 (2004) (interference with performance of contract is intentional if defendant knew “that the interference was certain or substantially certain to occur as a result of his or her action”). And his claimed financial loss? He could not fulfill his employment contract or pursue valuable employment opportunities because he was in jail. 3. The three-judge panel tried to distinguish Mendoza on the theory that Diaz did not allege “that he lost actual employment, only that he ‘was rendered unable to pursue gainful employment.’ ” Diaz, 380 F.3d at 484. This distinction is untenable, for Mendoza speaks generally of a “legal entitlement to business relations.” 301 F.3d at 1168 n. 4. Nor do we endorse such a distinction today, for California law protects the legal entitlement" }, { "docid": "5517640", "title": "", "text": "disrupt an existing contract precisely because the exchange of promises resulting in such a formally cemented economic relationship is deemed worthy of protection from interference by a stranger to the agreement. Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 392, 45 Cal.Rptr.2d 436, 902 P.2d 740 (1995). The tort of intentional interference with contract requires allegations of the following elements: “(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” Quelimane Co. v. Stewart Title Guar. Co., 19 Cal.4th 26, 55, 77 Cal.Rptr.2d 709, 960 P.2d 513 (1998). CRST adequately alleged each of these five elements required for intentional interference with contract. First, CRST alleged the existence of the Spencer employment contract and the first Chatman employment contract and incorporated the contracts by reference and attachment to the FAC. Second, CRST alleged Werner had knowledge of these contracts. Third, CRST alleged Werner intentionally induced breach of these contracts. Fourth, CRST alleged the employment contracts were breached. Fifth, CRST alleged resulting damage in the form of expended, unreimbursed, and hence, lost training costs, and recruiting and advertising costs. If CRST’s employment contract provided for “at-will” employment of Spencer and Chatman when Werner allegedly induced them to leave their posts, there would be an additional requirement that CRST allege an independently wrongful act by Werner. Reeves v. Hanlon, 33 Cal.4th 1140, 17 Cal.Rptr.3d 289, 95 P.3d 513 (2004). Here, no independently wrongful act was alleged. However, as will be seen, the employment contract alleged does not create an at-will employment relationship during the first year of employment, the period when it was allegedly the subject of Werner’s interference and consequent breach. Hence, CRST is under no obligation to meet the additional requirement of alleging an independently wrongful act beyond the alleged solicitation of Spencer and Chatman. CRST’s employment contract provides that the term of employment is one year, after which the employment may be terminated" }, { "docid": "16768940", "title": "", "text": "The state claims, to the extent that they depend on allegations of predatory pricing, fail for the same reasons that the federal claims fail. In this way, the fourth claim, alleging violation of the California Unfair Practices Act, Cal. Bus. & Prof.Code § 17045 et. seq., requires allegation of an injury to competition. ABC Int’l Traders, Inc. v. Matsushita Elec. Corp. of America, 14 Cal.4th 1247, 61 Cal.Rptr.2d 112, 931 P.2d 290, 298 (1997). Kentmaster vainly relies on its predatory pricing claim as the relevant injury. In the same way, the claim for unfair competition under §§ 17200 and 17203 of Cal. Bus. & Prof.Code requires allegations of an independent, unlawful act. See Farmers Ins. Exchange v. Superior Court, 2 Cal.4th 377, 6 Cal.Rptr.2d 487, 826 P.2d 730, 734 (1992). Kentmaster refers to the “anti-competitive acts” alleged in the complaint, but these acts are the predatory pricing claims which we have already held insufficient. To succeed on this claim for tortious interference with contractual relations, Kentmas-ter had to allege a valid and existing contract, of which Jarvis knew and for which Jarvis intended to induce its breach and did induce its breach by unjustified conduct causing Kentmaster damage. See Summit Machine Tool Mfg. Corp. v. Victor CNC Sys. Inc., 7 F.3d 1434, 1442 (9th Cir.1993). Kent-master has not identified any existing contracts and does not even directly allege that any contracts were breached. To succeed on the seventh claim, interference with prospective economic advantage, under California law Kentmaster had to plead that the defendant engaged in conduct that was wrongful by some legal measure “other than the fact of interference itself.” Della Penna v. Toyota Motor Sales, 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 902 P.2d 740, 751 (1995). Kentmaster provides no other wrongful act except those we have already held to be insufficient. Kentmaster now asks to amend its complaint. In the district court Kentmaster did not move to amend, as was its right. Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995), Fed.R.Civ.P. 15(a). In oral argument on appeal, when asked by the court what an amended complaint" }, { "docid": "5517646", "title": "", "text": "Werner violated the UCL because CRST adequately alleged that Wer-ner engaged in an “unlawful” business act or practice that allegedly harmed CRST, namely, intentional interference with CRST’s employment contracts. See id.; supra Part III. First, CRST’s allegation of intentional interference by a corporate competitor with the employment contracts CRST had with two of its drivers clearly alleges a business act or practice. Korea Supply, 29 Cal.4th at 1143, 131 Cal.Rptr.2d 29, 63 P.3d 937. Second, intentional interference with contract is a tor-tious violation of duties imposed by law. Id.; Quelimane, 19 Cal.4th at 55-56, 77 Cal.Rptr.2d 709, 960 P.2d 513. We need go no further to conclude that the district court must be reversed on its dismissal of Count III. We conclude CRST adequately alleged a violation by Werner of the UCL by alleging Werner engaged in an “unlawful” business practice, to wit, intentional interference with existing contracts of employment. V. Interference with Prospective Economic Advantage (Count IV) The elements of interference with prospective economic advantage re semble those of intentional interference with contract. They are: “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” Korea Supply, 29 Cal.4th at 1153, 131 Cal.Rptr.2d 29, 63 P.3d 937(citation and internal quotation marks omitted); compare supra Part III (discussing elements of intentional interference with contract). The primary difference between the two torts is that, unlike intentional interference with existing contractual relations, interference with prospective economic advantage requires a plaintiff to allege an act that is wrongful independent of the interference itself. Della Penna, 11 Cal.4th at 392-93, 45 Cal.Rptr.2d 436, 902 P.2d 740. In Della Penna, the California Supreme Court upheld a jury instruction requiring a “wrongful” act in a suit by an auto wholesaler who had been blacklisted by an auto manufacturer for exporting vehicles and who" }, { "docid": "22578278", "title": "", "text": "erroneously dismissed Navellier’s claims against MFS and Scott for waste and for intentional interference with prospective economic advantage pursuant to Federal Rule of Civil Procedure 12(b)(6). Appellants’ arguments are without merit. 1. Waste The parties agree that Delaware law is controlling on this issue. Delaware courts have explained that the legal test for waste is “severe.” Glazer v. Zapata Corp., 658 A.2d 176, 183 (Del.Ch.1993). “Directors are guilty of corporate waste, only when they authorize an exchange that is so one sided that no business person of ordinary, sound judgment could conclude that the corporation has received adequate consideration.” Id. We hold that the district court properly dismissed the waste claims asserted against MFS and Scott. Under Delaware law, there is no basis for a waste claim against these parties who were not directors. Moreover, appellants’ first amended complaint itself established that a shareholder proxy vote was legally required pursuant to Rule 15a-4 of the ICA, which also shows there could have been no waste. 2. Interference with prospective economic advantage California recognizes a “competition privilege,” which protects one from liability for inducing a third person not to enter into a prospective contractual relation with a business competitor. The privilege applies where (a) the relation [between the competitor and third person] concerns a matter involved in the competition between the actor and the competitor, and (b) the actor does not employ improper means, and (c) the actor does not intend thereby to create or continue an illegal restraint of competition, and (d) the actor’s purpose is at least in part to advance his interest in his competition with the other. Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Vill. Square Venture Partners, 52 Cal.App.4th 867, 880, 60 Cal.Rptr.2d 830 (1997) (internal quotation marks and citations omitted). See also Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 46 Cal.Rptr.2d 436, 902 P.2d 740, 751 (Cal.1995) (holding that plaintiff who seeks to recover for an alleged interference with prospective economic relations must prove that the defendant “engaged in conduct that was wrongful by some legal measure other" }, { "docid": "10361477", "title": "", "text": "the plaintiff.” See id. at 380 n. 1, 45 Cal.Rptr.2d 436, 902 P.2d 740. “[A]n essential element of the tort of interference with prospective business advantage is the existence of a business relationship with which the tortfeasor interfered. Although this need not be a contractual relationship, an existing relationship is required.” Roth v. Rhodes, 25 Cal.App.4th 530, 546, 30 Cal.Rptr.2d 706 (1994) (holding that motion for judgment on the pleadings was properly granted because plaintiff alleged an existing relationship only with speculative “future patients”). Similarly here, the complaint alleges no specific existing or prospective relationships and relies on conclusory language that merely repeat the elements of the tort. Such vague allegations do not satisfy federal pleading requirements because defendants are not on notice of which relationships they allegedly disrupted. See Conley, 355 U.S. at 45-46, 78 S.Ct. 99. Furthermore, plaintiff fails to allege wrongful conduct on behalf of defendants to satisfy the elements of the tort. Given the court’s dismissal of plaintiffs Lanham Act claim for false advertising with leave to amend, plaintiff has not demonstrated that defendants were engaging in wrongful conduct. To successfully bring this claim, plaintiff must allege specific wrongful acts that defendant committed that gave rise to the interference with plaintiffs alleged economic relationships. Therefore, the court grants defendants’ motion to dismiss claim ten with leave to amend. IX. Claim Eleven — Negligent Interference with Economic Advantage Plaintiff brings a cause of action for negligent interference with economic advantage against TeraRecon and Taylor. Both defendants move to dismiss this claim. To state a claim for negligent interference with economic advantage, plaintiff must allege defendant owed plaintiff a duty of care in addition to the elements required to state a cause of action for intentional interference with economic advantage. J'Aire Corp. v. Gregory, 24 Cal.3d 799, 803-04, 157 Cal.Rptr. 407, 598 P.2d 60 (1979). As stated above, plaintiff fails to satisfy the underlying elements of an interference with economic advantage claim. Plaintiff also fails to allege that either TeraRecon or Taylor owed a duty to plaintiff that would invoke this kind of tort claim. Plaintiff claims that" }, { "docid": "5517648", "title": "", "text": "sued the manufacturer for interfering with his economic relationships with dealers. The Court of Appeal had reversed the judgment entered upon a defense verdict, finding instructional error in a requirement the manufacturer’s act be wrongful. Id. at 378, 380, 45 Cal.Rptr.2d 436, 902 P.2d 740. Reversing the Court of Appeal, the California Supreme Court emphasized the difference between interference with an existing contract and interference with prospective economic relations: Our courts should, in short, firmly distinguish the two kinds of business contexts, bringing a greater solicitude to those relationships that have ripened into agreements, while recognizing that relationships short of that subsist in a zone where the rewards and risks of competition are dominant. Id. The Court held that the jury instruction, which required a finding of a wrongful act, was not erroneous because “a plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant’s interference was wrongful ‘by some measure beyond the fact of the interference itself.’ ” Id. (quoting Top Serv. Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 582 P.2d 1365, 1371 (1978)). Our analysis in Part III, Intentional Interference with Contract (Count I), is applicable to the question of whether CRST properly alleged the elements of interference with prospective economic advantage. CRST’s contracts with its employees created an “economic relationship” because this is how CRST claims it expected to recoup the costs of training those employees. Werner was allegedly aware of this relationship and allegedly performed acts intended to, and that did in fact, disrupt the economic relationship. Finally, CRST allegedly experienced harm from these acts. See supra Part III. The more difficult question is whether CRST has alleged an act, independently wrongful, to support its claim of interference with prospective economic advantage. See Della Penna, 11 Cal.4th at 392-93, 45 Cal.Rptr.2d 436, 902 P.2d 740. In Korea Supply, 29 Cal.4th 1134, 131 Cal.Rptr.2d 29, 63 P.3d 937, the California Supreme Court provided guidance as to what constitutes an independently wrongful act. There, a company representing a military equipment manufacturer sued its client’s" }, { "docid": "5517647", "title": "", "text": "are: “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” Korea Supply, 29 Cal.4th at 1153, 131 Cal.Rptr.2d 29, 63 P.3d 937(citation and internal quotation marks omitted); compare supra Part III (discussing elements of intentional interference with contract). The primary difference between the two torts is that, unlike intentional interference with existing contractual relations, interference with prospective economic advantage requires a plaintiff to allege an act that is wrongful independent of the interference itself. Della Penna, 11 Cal.4th at 392-93, 45 Cal.Rptr.2d 436, 902 P.2d 740. In Della Penna, the California Supreme Court upheld a jury instruction requiring a “wrongful” act in a suit by an auto wholesaler who had been blacklisted by an auto manufacturer for exporting vehicles and who sued the manufacturer for interfering with his economic relationships with dealers. The Court of Appeal had reversed the judgment entered upon a defense verdict, finding instructional error in a requirement the manufacturer’s act be wrongful. Id. at 378, 380, 45 Cal.Rptr.2d 436, 902 P.2d 740. Reversing the Court of Appeal, the California Supreme Court emphasized the difference between interference with an existing contract and interference with prospective economic relations: Our courts should, in short, firmly distinguish the two kinds of business contexts, bringing a greater solicitude to those relationships that have ripened into agreements, while recognizing that relationships short of that subsist in a zone where the rewards and risks of competition are dominant. Id. The Court held that the jury instruction, which required a finding of a wrongful act, was not erroneous because “a plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant’s interference was wrongful ‘by some measure beyond the fact of the interference itself.’ ” Id. (quoting Top Serv. Body" }, { "docid": "2747094", "title": "", "text": "the acts are unfair for the same reason it argues that they violate antitrust law. Chavez v. Whirlpool Corp., 93 Cal.App.4th 363, 375, 113 Cal.Rptr.2d 175 (2001). In its opposition, Plaintiff does not argue that the pled facts support a viable UCL claim except insofar as they support viable' Sherman and Cartwright Act violations. Opp., 25:5-7. Therefore, the Complaint fails to state sufficient facts to establish a viable UCL claim for the same reasons it has failed to state a viable violation of the Sherman and Cartwright Acts. D. Tortious Interference with Existing Contracts To state a viable claim for tortious interference with existing contracts, a plaintiff must establish an “underlying enforceable contract” evidencing a “formally cemented economic relationship.” Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Vill. Square Venture Partners, 52 Cal.App.4th 867, 879, 60 Cal.Rptr.2d 830 (1997) (quoting Della Penna v. Toyota Motor Sales USA, Inc., 11 Cal.4th 376, 392, 45 Cal.Rptr.2d 436, 902 P.2d 740 (1995)). The Complaint fails to allege facts sufficient to show that it had any such enforceable contracts with its existing customers or with Defendants METCo and Makita. Instead, it states only that Plaintiff had “regular trading relationships,” “contractual dealings,” and “master sales contract/ancillary contracts.” Complaint, ¶¶ 203-205. Plaintiff must plead sufficient factual allegations about the terms of its enforceable contracts, such that Defendants are sufficiently on notice to defend themselves from the claim of causing the breach or disruption of those contracts. E. Tortious Interference with Prospective Economic Relations In contrast to the tort of interference with existing contracts, a plaintiff need not show a specific enforceable contract in order to assert a claim for tortious interference with prospective economic relations. See Bed, Bath & Beyond, 52 Cal.App.4th at 879, 60 Cal.Rptr.2d 830. However, Plaintiff must show that the defendant’s conduct is “wrongful apart from the interference itself.” Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1153-54, 131 Cal.Rptr.2d 29, 63 P.3d 937 (2003). Since the Complaint hinges its allegations of wrongful conduct on the claimed antitrust violations, this allegation is insufficient for the same reasons discussed" }, { "docid": "6420434", "title": "", "text": "conflict’ between the laws of the possible jurisdictions on the pertinent issue.”) (citing Harlan Feeders, 881 F.Supp. at 1404, in turn citing, inter alia, Nesladek, 46 F.3d at 736). The elements of a claim of tortious interference with existing contracts, under both Iowa and California law, are the following: (1) the plaintiff had a valid contractual relationship with a third party; (2) the defendant knew of that relationship; (3) the defendant intentionally interfered with that relationship; (4) the defendant’s action caused the third party to breach its contractual relationship with the plaintiff or disrupted the contractual relationship between the third party and the plaintiff by making performance more burdensome or expensive; and (5) the amount of damages. See, e.g., Grimm v. U.S. West Communications, Inc., 644 N.W.2d 8, 11-12 (Iowa 2002); Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751, 763 (Iowa 1999); accord PMC, Inc. v. Saban Entertainment, Inc., 45 Cal.App.4th 579, 595, 601, 52 Cal.Rptr.2d 877, 886 (1996). The elements of the tort of interference with a prospective business advantage or contractual relationship, under both Iowa and California law, are the following: (1) the plaintiff had a prospective contractual or business relationship; (2) the defendant knew of the prospective relationship; (3) the defendant intentionally and improperly interfered with the relationship; (4) the defendant’s interference caused the relationship to fail to materialize; and (5) the amount of resulting damages. See, e.g., Blumenthal Inv. Trusts v. City of West Des Moines, 636 N.W.2d 255, 269 (Iowa 2001); accord Westside Center Associates v. Safeway Stores 23, Inc., 42 Cal.App.4th 507, 521-522, 49 Cal.Rptr.2d 793 (1996). Thus, both claims have as an element the impropriety or wrongfulness of the defendant’s conduct. That impropriety or wrongfulness must be “by some legal measure other than the fact of interference itself.” Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 902 P.2d 740, 751 (1995); accord Compiano v. Hawkeye Bank & Trust, 588 N.W.2d 462, 464 (Iowa 1999) (a defendant’s conduct is improper only if it is undertaken with “the sole or predominant purpose to injure or financially destroy”" }, { "docid": "582424", "title": "", "text": "Court jurisprudence. See id. Here, plaintiff seeks “to enjoin Defendants from further conduct in violation of the California Business & Professions Code, including but not limited to an injunction preventing Defendants from disseminating or publishing further false, defamatory or disparaging information about Isuzu or the Trooper.” Complaint, ¶201. Such an injunction would necessarily precede an adequate determination that a particular statement by defendant was false, defamatory or disparaging. Accordingly, plaintiffs claim for relief under § 17200 is dismissed with prejudice to the extent it seeks relief beyond enjoining defendant from making specific statements determined to be unprotected by the First Amendment regarding Isuzu or the 1995 or 1996 Trooper. Plaintiff shall have leave to amend the Twenty-third claim for relief in keeping with the foregoing analysis. See Kramer v. Thompson, 947 F.2d 666, 676 (3d Cir.1991) (“[O]nce a jury has determined that a certain statement is libelous, it is not a prior restraint for the court to enjoin the defendant from repeating that statement.” (emphasis added)). 6. Intentional Interference with Business Relations To state a claim for intentional interference with prospective economic advantage, a plaintiff must plead: “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” LiMandri v. Judkins, 52 Cal.App.4th 326, 339, 60 Cal.Rptr.2d 539 (4th Dist.1997). “[A] plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant’s interference was wrongful ‘by some measure beyond the fact of the interference itself.’ ” Della Penna v. Toyota Motor Sales, U.S.A., 11 Cal.4th 376, 393, 45 Cal.Rptr.2d 436, 902 P.2d 740 (1995). Here, plaintiff Isuzu Motors, Ltd. simply has not alleged such interference, particularly in light of the fact that it appears from the allegations that the manufacturer deals exclusively with the importer, the importer deals exclusively" } ]

[ { "docid": "22041275", "title": "", "text": "reverse this below-guideline sentence is this: Does Judge Hood’s improper consideration of Escalante-Reyes’s rehabilitation needs, among several other legitimate sentencing considerations, seriously affect the fairness, integrity, or public reputation of judicial proceedings? Is this unpreserved, forfeited error so “particularly egregious,” grievous, and serious, and this case so rare and “exceptional,” that we are willing to abrogate our most basic and longstanding rules of procedure to correct it because it generally “underminefs] the fundamental fairness” of the courts and offends “core notions of justice”? If left uncorrected, would this five-year sentence shock the public’s conscience and cause fair-minded men and women to lose confidence in our judicial system? The answer to these questions is “No”: [E]ven if an increase in a sentence be seen as inevitably ‘substantial’ in one sense it does not inevitably affect the fairness, integrity, or public reputation of judicial proceedings. To conclude that not correcting the error casts doubt on the fairness, integrity, or public reputation of the proceedings drains all content from the doctrine of plain error. Ellis, 564 F.3d at 378-79. There are some cases in which we at least arguably may legitimately consider exercising our limited and circumscribed discretion to reverse on plain error review, but this error does not offend “core notions of justice.” Gonzalez-Huerta, 403 F.3d at 739. The majority abuses that discretion by reversing the sentence, which does not “seriously affect the fairness, integrity or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (citation and alterations omitted). The majority does not take the word “seriously” seriously enough. s{i ‡ * % # ❖ Appendix A Fifth Circuit Cases Applying the Fourth Prong (Sentencing cases are denoted with an asterisk.) Fifth Circuit cases in which plain error has been found: United States v. Beasley, — Fed.Appx. -, 2012 WL 2504996 (5th Cir. June 27, 2012)*; United States v. Rodriguez, — Fed.Appx. -, 2012 WL 2369333 (5th Cir. June 22, 2012)*; United States v. Herrera, 466 Fed.Appx. 409 (5th Cir.2012)*; United States v. Broussard, 669 F.3d 537 (5th Cir.2012)*; United States v. Perez, 460 Fed.Appx. 294 (5th Cir.2012)*;" } ]

[ { "docid": "22623039", "title": "", "text": "PER CURIAM: Francisco Morales-Mota pleaded guilty, without the benefit of a plea agreement, of being unlawfully present in the United States after having been deported. His offense level was enhanced by sixteen under U.S.S.G. § 2L1.2(b)(l)(A)(ii) based on a conviction of burglary of a habitation with intent to commit theft, which was determined to be a crime of violence (“COV”). Morales-Mota ultimately received a forty-six-month sentence, which was at the bottom of the advisory guideline range. Morales-Mota challenges the enhancement, contending that Texas’s burglary-of-a-habitation offense falls outside the generic, contemporary definition of burglary and thus does not constitute a COV. Because Morales-Mota did not raise that objection in the district court, our review is for plain error. See United States v. Chavez-Hernandez, 671 F.3d 494, 497-99 (5th Cir.2012). To succeed under that standard, Morales-Mota must show an error that is clear or obvious and that affects his substantial rights, but even so, we generally will exercise our discretion to correct the error only if it “seriously af fect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks and citation omitted). Section 2L1.2(b)(l)(A)(ii) provides for an increase of sixteen to a base offense level if the defendant was previously deported after being convicted of a COV. Among the enumerated COVs listed in the guideline commentary is burglary of a dwelling. § 2L1.2, comment, (n. l(B)(iii)). To determine whether a particular conviction is for an enumerated COV, we compare the generic, contemporary definition of the enumerated crime with the conduct described in the statute of conviction. United States v. Lopez-DeLeon, 513 F.3d 472, 474 (5th Cir.2008). If the statute’s definition of an offense is broader than the generic definition, that offense cannot serve as a predicate for the adjustment. United States v. Sanchez, 667 F.3d 555, 561 (5th Cir.2012). The generic, contemporary definition of burglary of a dwelling is the unlawful or unprivileged entry into, or remaining in, a building, structure, tent, or vessel used for human habitation, with intent to commit a crime." }, { "docid": "22870067", "title": "", "text": "lacks procedural error, this court next considers the substantive reasonableness of the sentence imposed. Id. On appeal, Kippers (1) asserts that the district court committed procedural error and (2) attacks the sentence imposed on revocation for its substantive reasonableness. A Kippers contends that the district court committed a procedural error because it based his sentence on inadequate and improper reasons and failed to consider his mental illness. Because Kippers objected only generally to the reasonableness of his sentence, we review Kippers’ claimed procedural error for plain error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir.2009) (explaining that plain error review applied on appeal where defendant failed to raise any of the specific claims of procedural error before the district court). To show plain error, Kippers must show an error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009); United States v. Davis, 602 F.3d 643, 647 (5th Cir.2010) (explaining that in the sentencing context, an error affects substantial rights “where the appellant can show a reasonable probability that, but for the district court’s error, the appellant would have received a lower sentence”). This court will only exercise its discretion to correct an error, however, if Kippers also demonstrates that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See Puckett, 129 S.Ct. at 1429. Where a defendant violates a condition of probation at any time before his term of probation expires or terminates, the court may, after conducting a hearing and considering § 3553(a)’s factors (to the extent that they apply), either continue the defendant’s probation or revoke probation and resentenee the defendant. 18 U.S.C. § 3565(a). Section 3553(a)’s factors include: (1) the nature and circumstances of the offense and the defendant’s history and characteristics; (2) the need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, afford adequate deterrence from crime, protect the public from further crimes of the defendant, and provide" }, { "docid": "22647404", "title": "", "text": "a defendant. See United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1186 (10th Cir.2004). In Matias, this court noted the Tenth Circuit’s minority view and rejected the argument that Ruiz advances. 465 F.3d at 173-74 n. 14. The court stated that it had held “in numerous contexts that the concept of possession of a weapon encompasses both actual possession and constructive possession” and held that there was no reason to exclude constructive possession from the safety valve provision. Id. at 174 (citations omitted). Because Ruiz “possessed” a firearm during his offense, the district court did not err when it declined to reduce Ruiz’s offense level under the safety valve provision. D. Finally, Ruiz argues that his 168-month sentence was substantively unreasonable because (1) when the district court cross referenced his offense it vastly overstated the severity of the bribery case for which he was convicted, and (2) application of § 2Dl.l(b)’s enhancement for possessing a firearm and § 3B1.3’s enhancement for abusing a position of trust effectively subjected him to double or triple punishment for his offense conduct. Ruiz did not object to the reasonableness of his sentence before the district court; therefore this court’s review is for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). To establish plain error, Ruiz must first show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If he makes such a showing, this court may exercise its discretion to correct the error but only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” See id. (citation omitted). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008). Ruiz’s history and characteristics did not require a sentence lower than the sentence the guidelines provide. See Rita, 551 U.S. at 360, 127 S.Ct. 2456. “[T]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with" }, { "docid": "12186422", "title": "", "text": "enhance this focus [arguably] took the production out of the realm of Steen.” Ultimately, the court imposed a sentence of 200-months’ imprisonment — a downward variance of over five-years from the bottom-end of the recommended Guidelines-range — to be followed by a period of supervised release. McCall timely appealed. DISCUSSION McCall raises two errors on appeal. First, he asserts that the district court erred in accepting his plea because the video in question did not satisfy the “sexually explicit conduct” element of § 2251(a). Second, he argues that the court erred in accepting his plea because the fact that the phone he used to record Doe had moved across state lines did not suffice to satisfy § 2251(a)’s interstate commerce requirement. McCall concedes, and the record confirms, that he did not object to the factual resume below. Accordingly, our review is for plain error. To show plain error, McCall must show (1) an error that is (2) “clear or obvious, rather than subject to reasonable dispute” and that (3) affects his substantial rights. United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)). If McCall satisfies these requirements, we have discretion to remedy the error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (quoting Puckett, 556 U.S. at 135, 129 S.Ct. 1423). “In assessing factual sufficiency under the plain error standard, we may look beyond those facts admitted by the defendant during the plea colloquy and scan the entire record for facts supporting his conviction.” United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010). A. We begin with McCall’s argument that the district court erred in accepting his plea based on a failure of § 2251(a)’s “sexually explicit conduct” element. Before accepting McCall’s plea, Federal Rule of Criminal Procedure 11 required the “district court ... to make certain that the factual conduct admitted by [McCall was] sufficient as a matter of law to establish a violation of’ § 2251(a). Id. at 313 (emphasis omitted). Pertinent" }, { "docid": "2470499", "title": "", "text": "judge’s R&R on the remand issue contained a warning about the consequences of failing to object in writing. Despite the caution, Quinn never filed objections. We thus review the remand issue for plain error. See Thomas v. Arn, 474 U.S. 140, 148, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To succeed under plain-error review, Quinn must show (1) an error; (2) that is plain or obvious; (3) that affects his substantial rights. See United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc). To establish an effect on his substantial rights, Quinn must show the outcome of the proceedings would have been different had the district court decided the issue the other way. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If the first three factors are satisfied, we have discretion to correct the error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (alterations omitted). Federal courts are courts of limited jurisdiction, having the power to hear only cases that present a federal question or are between citizens of different states. Arbaugh v. Y&H Corp., 546 U.S. 500, 513, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Because the parties here are all Texas domiciliaries, removal jurisdiction must be based on a federal question. The plaintiffs federal question must appear on the face of his well-pleaded complaint. Bernhard v. Whitney Nat’l Bank, 523 F.3d 546, 551 (5th Cir. 2008). The plaintiff need not specifically cite a federal provision such as Section 1983, Johnson v. City of Shelby, — U.S. —, 135 S.Ct. 346, 346-47, 190 L.Ed.2d 309 (2014) (per curiam), but he must allege facts sufficient to establish a colorable issue of federal law, see Caterpillar Inc. v. Williams, 482 U.S. 386, 391-92, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). “[T]he plaintiff [is] the master of the claim,” so he may confine his arguments to those arising under state law even if federal claims are available. Id. at 392, 107 S.Ct. 2425. If he so chooses, there is no basis for federal jurisdiction. Id." }, { "docid": "16856774", "title": "", "text": "Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. If the district court’s decision is procedurally sound, this court will then “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. The sentencing court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. at 50, 128 S.Ct. 586 (citation omitted). “The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (citation omitted). A sentence within the Guidelines range will require “little explanation,” United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005), but where a party “presents nonfrivolous reasons for imposing a different sentence ... the judge will normally go further and explain why he has rejected those arguments,” Rita, 551 U.S. at 357, 127 S.Ct. 2456. Although Rouland requested a probationary sentence, Rouland did not lodge any objections after he was sentenced. Because Rouland failed to apprise the district court of the alleged error he complains of on appeal, our review is for plain error. United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009) (“A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for [this court’s] review.” (citation and internal quotation marks omitted)). To succeed on plain error review, Rouland must show (1) a forfeited error (2) that is clear or obvious and (3) that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (citations omitted). If he makes that showing, this court may exercise its discretion “to remedy the error ... only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks, alteration, and citation omitted). In Mondragon-Santiago, we considered whether a district court committed procedural" }, { "docid": "22766568", "title": "", "text": "error review applies. II. THE LEGAL STANDARD A district court may impose any sentence upon revocation of supervised release that falls within the statutory maximum term allowed for the revocation sentence, but must consider the factors enumerated in 18 U.S.C. § 3553(a) and the policy statements before doing so. 18 U.S.C. § 3583(e); United States v. McKinney, 520 F.3d 425, 427 (5th Cir.2008). Had Davis properly preserved his objection to the 15 to 21 month advisory range, we would review to determine whether the sentence imposed was unreasonable or “plainly unreasonable.” See United States v. Jones, 484 F.3d 783, 792 (5th Cir.2007). Because Davis did not object to the 15 to 21 month advisory range in the district court, however, we review under a more deferential standard for plain error. United States v. Davis, 487 F.3d 282, 284 (5th Cir.2007). To establish plain error, an appellant must show a forfeited error that is clear or obvious and that affected his substantial rights. Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Ordinarily, an error affects substantial rights only if it “ ‘affected the outcome of the district court proceedings.’ ” Id. (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also Davis, 487 F.3d at 284. If the appellant makes this showing, “the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Puckett, 129 S.Ct. at 1429 (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). In the sentencing context, we have held that an appellant can show an impact on substantial rights — and therefore a basis for reversal on plain error review— where the appellant can show a reasonable probability that, but for the district court’s error, the appellant would have received a lower sentence. United States v. Garcia-Quintanilla, 574 F.3d 295, 303-04 (5th Cir.2009). We have specifically applied this rule where the district court considered an incorrect advisory range" }, { "docid": "11619699", "title": "", "text": "this one not adequately raised in the district court are reviewed for plain error on appeal; an appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Even when that standard is satisfied, we have discretion to correct the error only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (alteration in original). Ramos Cerón is unable to show that the district court’s failure to apply collateral estoppel is reversible plain error. “The defendant bears the burden of demonstrating that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” United States v. El-Mezain, 664 F.3d 467, 552 (5th Cir.2011) (internal quotation marks omitted). The record before the district court on this issue did not satisfy that burden. . At oral argument, Ramos Ceron’s counsel argued that, on appeal, we should take judicial notice of sealed docket entries in the prior case, which would reveal the written objection Ramos Cerón filed and the district court’s statement of reasons showing that the court did not apply the enhancement. Even then, because the docket does not contain a transcript of the sentencing hearing, we would not know the exact reasoning used by the district court in the earlier case. See United States v. Giarratano, 622 F.2d 153, 156 & n. 4 (5th Cir.1980) (holding that a criminal defendant who failed to provide transcripts could not show that a prior trial “necessarily decided” the issue in a subsequent case, and thus failed to carry his burden on collateral estoppel). But more fundamentally, we review for plain error based on the record before the district court. See United States v. Montano, 505 Fed.Appx. 299, 300 (5th Cir.2013), cert. denied,, — U.S. -, 133 S.Ct. 2367, 185 L.Ed.2d 1086 (2013) (evaluating plain error “on the limited record before the district court”); United States v. Troyer, 677 F.3d 356, 358-59 (8th Cir.2012) (“[T]he error must be clear on the record in the district" }, { "docid": "11330931", "title": "", "text": "against a person. He has also failed to present any case wherein a Texas court accepted his interpretation of “force.” In the absence of case law supporting the interpretation proposed by Avalos-Martinez, we must rest on our interpretation of the plain language of the statute, which leads us to the conclu sion that “force” means force against people, not property. Therefore, we conclude that the crime of attempting to take a weapon from a peace officer has the use of force against a person as a necessary element, and that it qualifies as a crime of violence under U.S.S.G. § 2L1.2(b)(l)(A)(ii). The district court did not err in applying the sixteen-level enhancement. B. Criminal History Points The second argument that Avalos-Martinez makes on appeal is that the district court erred in assigning criminal history points to two of his prior convictions that occurred more than ten years prior to the instant offense and that resulted in less than one year and one month of imprisonment. Avalos-Martinez failed to make this objection before the district court and thus he acknowledges that our review is for plain error. See United States v. Espinoza, 677 F.3d 730, 735 (5th Cir.2012). To show plain error, AvalosMartinez must show (1) an error (2) that was clear or obvious (3) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). A sentencing error affected a defendant’s substantial rights if there is a “reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence.” United States v. John, 597 F.3d 263, 285 (5th Cir.2010) (internal quotation mark omitted). If Avalos-Martinez establishes plain error, we have the discretion to correct the error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (internal quotation marks omitted). Section 4A1.2(e) of the sentencing guidelines provides that a prior sentence imposed more than ten years before the commencement of the instant offense is not to be counted toward a defendant’s criminal history" }, { "docid": "6562243", "title": "", "text": "PER CURIAM: Defendant-Appellant Andre McDaniels appeals the sentences imposed following his guilty-plea conviction on nine counts of tampering with a witness by corrupt persuasion. The district court sentenced him to 78 months of imprisonment on each count, with those sentences to run concurrently with each other but consecutively to federal sentences that McDaniels was already serving following prior convictions on charges of coercion and enticement. McDaniels argues that the sentences imposed by the district court were substantively unreasonable because the district court did not afford adequate weight to the applicable guidelines range — U.S.S.G. § 5G1.3 in particular — in its balancing of the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 50-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). He did not object on this basis in the district court, however, so plain error review applies. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). McDaniels does not attempt to show that the alleged error either “affected [his] substantial rights” or “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,” however, so he cannot establish reversible plain error. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks and citations omitted); see also United States v. Williams, 620 F.3d 483, 496 (5th Cir.2010). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "22815099", "title": "", "text": "range. Key objected to the sentence as unreasonable and has now timely appealed. II. STANDARD OF REVIEW In general, this court reviews a district court’s sentencing decision under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). Further, “Appellate review is highly deferential as the sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.2008). When an objection has not been raised below, however, plain-error review governs that issue. United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009), cert. denied (October 5, 2009) (No. 08-11099). A plain error is one that is clear or obvious and that affects the party’s substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 962, 173 L.Ed.2d 153 (2009). This court will correct plain errors only if they seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id. III. DISCUSSION On appeal, Key raises two issues. First, he argues that the district court committed procedural error by failing to adequately explain its reasons for imposing a non-guidelines sentence. Second, he challenges the sentence itself as substantively unreasonable. In addition, at the request of this court, the parties briefed a third issue, whether the Texas offense of Intoxicated Manslaughter was properly assimilated under the Assimilative Crimes Act. We address each issue in turn. A. Procedural Error Key complains that the district court committed a significant procedural error by failing adequately to consider the policy factors enumerated in 18 U.S.C. § 3553(a) and document its reasoning for imposing a non-guidelines sentence, as required by § 3553(c). Because Key did not raise this objection before the district court, it is subject to plain error review. Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Section 3553(c) states that the district court, “at the time of sentencing, shall state in open court the reasons for its" }, { "docid": "2262669", "title": "", "text": "se unreasonable under the Fourth Amendment, subject to a few specific exceptions.” United States v. Mata, 517 F.3d 279, 284 (5th Cir.2008) (citing Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Andres argues that the warrantless placement and use of the GPS device to monitor the truck he was driving violated the Fourth Amendment. Andres further argues that because this illegal GPS search directly led to the discovery of the drugs in his truck, the drugs must be suppressed under the “fruit of the poisonous tree” doctrine. See, e.g., United States v. Hernandez, 670 F.3d 616, 620 (5th Cir.2012). Because Andres did not argue before the district court that the GPS search was unconstitutional, we review his argument only for plain error. See United States v. Baker, 538 F.3d 324, 328-29 (5th Cir.2008). To demonstrate plain error, an appellant must show an error that is clear or obvious and that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If the appellant makes such a showing, this court has the discretion to remedy the error, but should do so only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. “[W]here the law is unsettled at the time of trial but settled by the time of appeal, the ‘plainness’ of the error should be judged by the law at the time of appeal.” United States v. Escalante-Reyes, 689 F.3d 415, 423 (5th Cir.2012) (en banc). We need not decide whether warrantless GPS searches are per se unreasonable. Furthermore, we need not decide whether the agents in this case acted without a warrant or whether the drug evidence is derived from the GPS search. Even assuming that a Fourth Amendment violation occurred and that suppression would otherwise be appropriate, the evidence should not be suppressed in this case because the officers acted in reasonable reliance on circuit precedent. “[Sjearches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis v. United States," }, { "docid": "3522853", "title": "", "text": "only add that I would be strongly disinclined to find plain error if we did use that standard. . The majority of the recent unpublished opinions follow Lopez. See United States v. Aguirre, No. 10-51167, 2012 WL 11046 *2 (5th Cir. Jan. 4, 2012); United States v. Marquez-Murillo, No. 11-50281, 2011 WL 6934419 *1 (5th Cir. Dec. 30, 2011); United States v. Castillo, 445 Fed.Appx. 784, 784-85 (5th Cir.2011); United States v. Salizar-Proa, 442 Fed.Appx. 908, 910 (5th Cir.2011); United States v. Miller, 450 Fed.Appx. 336, 338-39 (5th Cir.2011); United States v. Candrick, 435 Fed.Appx. 404, 406 (5th Cir.2011); United States v. Zamora-Melgoza, 396 Fed.Appx. 121, 122 (5th Cir.2010); United States v. Mendoza, 395 Fed.Appx. 144, 145 (5th Cir.2010). PRADO, Circuit Judge, concurring: I write separately to discuss the court’s review (or rather, the lack thereof) of Claiborne’s claim that the district court erred in applying the obstruction of justice enhancement under U.S.S.G. § 3C1.1. Generally, failure to object to an error at the district court limits this court’s review to plain error. United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005) (per curiam); see also Fed.R.Crim.P. 52(b). This standard requires that the defendant show (1) error, (2) that is clear or obvious, (3) and that affects his substantial rights; (4) if the elements are satisfied, this court may exercise its discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). In this case, the court declines to review Claiborne’s claimed error as to the application of the obstruction of justice enhancement based on the rule from United States v. Lopez, 923 F.2d 47 (5th Cir.1991) (per curiam), that “ ‘[questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.’ ” Per Curiam Op., supra, at 438 (quoting Lopez, 923 F.2d at 50) (footnote added). Yet, we have not relied exclusively on this rule in reviewing unobjected-to applications of Guidelines enhancements. In United States v. Pattan," }, { "docid": "22647405", "title": "", "text": "offense conduct. Ruiz did not object to the reasonableness of his sentence before the district court; therefore this court’s review is for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). To establish plain error, Ruiz must first show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If he makes such a showing, this court may exercise its discretion to correct the error but only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” See id. (citation omitted). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008). Ruiz’s history and characteristics did not require a sentence lower than the sentence the guidelines provide. See Rita, 551 U.S. at 360, 127 S.Ct. 2456. “[T]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant.” Campos-Maldonado, 531 F.3d at 339. A defendant’s disagreement with the propriety of the sentence imposed does not suffice to rebut the presumption of reasonableness that attaches to a within-guidelines sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.2008); United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir.2008). Ruiz has not shown that his sentence was substantively unreasonable, see Gall, 552 U.S. at 51, 128 S.Ct. 586, nor has he rebutted the presumption of reasonableness that attaches to his within-guidelines sentence. See Gomez-Herrera, 523 F.3d at 565-66. Accordingly, he has not shown any error, plain or otherwise. III. For the foregoing reasons, the judgment of the district court is AFFIRMED. . The conclusion this court reaches today that subsection (c)(l)’s cross reference may apply even if the defendant committed the bribery offense for the purpose of conspiring with a government agent to possess an illegal substance is consistent with this court’s two recent unpublished opinions concerning the applicability of the subsection. See United States v. Williams, 332" }, { "docid": "12682150", "title": "", "text": "similarity here — Andino-Ortega’s counsel acknowledged that the 16-level enhancement was proper — he did so on the basis of a misunderstanding of this court’s precedent. The statements regarding the propriety of the crime-of-violence enhancement do not constitute a waiver because they do not evidence an intentional and knowing relinquishment of a right. Counsel’s failure to object below because he did not recognize the argument now being made on appeal is not a waiver. See United States v. Castaneda-Baltazar, 239 Fed.Appx. 900, 901 (5th Cir.2007) (unpub lished); see also United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.2006) (finding no waiver of sentencing guidelines issue even though defense counsel stated that “other than the Blakely objection, he had no problem with the PSR”). Accordingly, we review for plain error. Ill Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this court reviews sentences for reasonableness in light of the factors in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). Pursuant to Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the court determines whether the sentence is procedurally sound and whether it is substantively reasonable. This court reviews a district court’s interpretation of the guidelines de novo and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). Because Andino-Ortega did not object below, he must establish that the district court plainly erred in applying the guidelines. Arviso-Mata, 442 F.3d at 384. Under plain error, the appellant must show an error, that is clear or obvious, and that affected his substantial rights. See Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009); United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). If these requirements are met, this court may remedy the error if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett, 129 S.Ct. at 1429 (quotation omitted) (alteration in original). A The Guidelines provide for a 16-level increase in a defendant’s base offense" }, { "docid": "11330932", "title": "", "text": "and thus he acknowledges that our review is for plain error. See United States v. Espinoza, 677 F.3d 730, 735 (5th Cir.2012). To show plain error, AvalosMartinez must show (1) an error (2) that was clear or obvious (3) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). A sentencing error affected a defendant’s substantial rights if there is a “reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence.” United States v. John, 597 F.3d 263, 285 (5th Cir.2010) (internal quotation mark omitted). If Avalos-Martinez establishes plain error, we have the discretion to correct the error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (internal quotation marks omitted). Section 4A1.2(e) of the sentencing guidelines provides that a prior sentence imposed more than ten years before the commencement of the instant offense is not to be counted toward a defendant’s criminal history unless it was a sentence of imprisonment exceeding one year and one month. U.S.S.G. § 4A1.2(e)(l)-(3). The two prior sentences at issue were imposed on February 14, 1997, and the “commencement of the instant offense”— i.e., the moment that Avalos-Martinez illegally reentered the United States — occurred “sometime in 2008”; thus, the prior sentences were imposed more than ten years before the commencement of the instant offense and should have been counted only if they were sentences of imprisonment exceeding one year and one month. However, both were sentences of probation, and although both were revoked, neither revocation resulted in a sentence of imprisonment exceeding one year and one month. It was therefore clear error to assign criminal history points based on these sentences, and the Government concedes as much. See United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir.2006). This error resulted in Avalos-Martinez having four more criminal history points than he should have had, making his criminal history category V when it should have been category IV. See U.S.S.G. ch. 5, pt." }, { "docid": "23467976", "title": "", "text": "months to life imprisonment without the enhancement. See United States v. Ramos, 71 F.3d 1150, 1158 n. 27 (5th Cir.1995) (recognizing that any error in applying a two-point enhancement would have been harmless because the defendant would have received the same Guidelines range of 360 months to life without the enhancement, and the defendant received the minimum sentence of 360 months). 2. Second, Garcia challenges that the district court should not have applied both a two-point enhancement under § 2Ll.l(b)(6) and a six-point enhancement under § 2Ll.l(b)(8)(B) to his alien-harboring offenses based on the same alleged conduct—the prostitution of minor aliens. We review this challenge for plain error because Garcia objected to the § 2L1.1(b)(6) enhancement, but not the § 2L.l(b)(8)(B) enhancement. United States v. Olano, 507 U.S. 725, 732, 113 5.Ct. 1770, 123 L.Ed.2d 508 (1993). Under plain-error review, Garcia must show: (1) an error, (2) that is plain, (3) and that affected his substantial rights. Id. After this showing, we will exercise discretion to correct the error “ ‘only if the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir.2012) (en banc) (alterations in original) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)). We agree with the government that it was not error for the district court to impose both enhancements because, contrary to Garcia’s claim, the enhancements do not necessarily implicate the same conduct. As noted above, we may affirm an enhancement on any ground supported by the record. Jackson, 453 F.3d at 308 n. 11. The PSR stated that five of the eleven harbored illegal female aliens were coerced and/or otherwise forced into prostitution. Four of them were under the age of eighteen. The § 2Ll.l(b)(6) enhancement applies to offenses that create a substantial risk of bodily injury, and therefore, we may uphold the enhancement based on the prostitution of the single harbored adult female. § 2L1.1(b)(6). The § 2Ll.l(b)(8)(B) enhancement applies specifically to the harbored, undocumented alien minors who engaged in prostitution. §" }, { "docid": "22337380", "title": "", "text": "until after he was sentenced and after he filed his initial brief. In exceptional circumstances, especially criminal cases, we can, in our discretion, take sua sponte notice of errors not presented in either the district court or the appellant’s initial brief. We exercise this discretion with the greatest prudence, recognizing that it is only the extraordinary case which will excuse an appellant’s failure to make an argument in his initial brief. Like review of errors not preserved through an objection in the district court, we review an error neither argued in the district court nor presented on appeal for plain error. To demonstrate reversible plain error, Broussard must show “(1) error (2) that is plain and (3) that affects his substantial rights.” United States v. Castillo-Estevez, 597 F.3d 238, 240 (5th Cir.2010). “To be ‘plain,’ legal error must be ‘clear or obvious, rather than subject to reasonable dispute.’ ” Id. at 241 (quoting Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009)). To affect the defendant’s substantial rights, the defendant must demonstrate that the error affected the outcome of the district court proceedings. Puckett, 129 S.Ct. at 1429; United States v. Dickson, 632 F.3d 186, 191 (5th Cir.2011) (stating that, in the sentencing context, the defendant must demonstrate a “reasonable probability” that, but for the district court’s error, he would have received a lesser sentence); United States v. Williams, 620 F.3d 483, 496 (5th Cir.2010) (same). Finally, “[w]e will exercise our discretion to correct plain error if it seriously affected the fairness, integrity, or public reputation of the judicial proceeding.” United States v. Murray, 648 F.3d 251, 253 (5th Cir.2011). As detailed above, the district court committed error in relying on Broussard’s rehabilitative needs when it determined the length of his sentence. We now must determine if the district court’s error was clear or plain, an inquiry complicated by the fact that the Supreme Court decided Tapia after Broussard had been sentenced. At the time of his sentencing, this court had never squarely addressed whether it was permissible for a sentencing court to consider" }, { "docid": "3522854", "title": "", "text": "v. Villegas, 404 F.3d 355, 358 (5th Cir.2005) (per curiam); see also Fed.R.Crim.P. 52(b). This standard requires that the defendant show (1) error, (2) that is clear or obvious, (3) and that affects his substantial rights; (4) if the elements are satisfied, this court may exercise its discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). In this case, the court declines to review Claiborne’s claimed error as to the application of the obstruction of justice enhancement based on the rule from United States v. Lopez, 923 F.2d 47 (5th Cir.1991) (per curiam), that “ ‘[questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.’ ” Per Curiam Op., supra, at 438 (quoting Lopez, 923 F.2d at 50) (footnote added). Yet, we have not relied exclusively on this rule in reviewing unobjected-to applications of Guidelines enhancements. In United States v. Pattan, 931 F.2d 1035 (5th Cir.1991), this court addressed, in the context of the district court’s enhancement under § 3C1.1, “whether, under the plain error standard, [it] should evaluate the adjustments based solely on the factual findings actually made by the trial judge or whether [it] should consider the entire record when [it] evaluate^] the adjustments.” Id. at 1042-43. It resolved that, “[g]iven the minimal nature of our review, we find it appropriate to consider all of the evidence in the record supporting the adjustments, and will uphold the adjustments if the record as a whole demonstrates that the adjustments did not result in a miscarriage of justice.” Id. at 1043. Plain error has previously been described by this court as “error so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of the judicial proceedings and result in a miscarriage of justice.” United States v. Peltier, 505 F.3d 389, 391 n. 3 (5th Cir.2007) (alteration and internal quotation marks omitted). My reading of Pattan is that unobjected-to errors" }, { "docid": "16856775", "title": "", "text": "Rouland did not lodge any objections after he was sentenced. Because Rouland failed to apprise the district court of the alleged error he complains of on appeal, our review is for plain error. United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009) (“A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for [this court’s] review.” (citation and internal quotation marks omitted)). To succeed on plain error review, Rouland must show (1) a forfeited error (2) that is clear or obvious and (3) that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (citations omitted). If he makes that showing, this court may exercise its discretion “to remedy the error ... only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks, alteration, and citation omitted). In Mondragon-Santiago, we considered whether a district court committed procedural error by failing to adequately explain a within-Guidelines sentence even though the defendant “raised arguments before the district court concerning his family, his work history, and his prior convictions.” 564 F.3d at 363. In applying plain-error review, we first noted that the district court’s failure to adequately explain its sentence constituted error but ultimately concluded that such error did not impair Mondragon-Santiago’s substantial rights, as the district court imposed a within-Guidelines sentence. Id. at 364-65 (citing United States v. Izaguirre-Losoya, 219 F.3d 437, 441-42 (5th Cir.2000)). Accordingly, we held that Mondragon-Santiago failed to demonstrate reversible plain error, as he failed to show how an explanation by the district court would have changed his sentence. Id. at 365. In the instant case, the district court’s failure to provide any explanation of reasons supporting Rouland’s sentence amounts to clear error. See id. at 364. We note, however, that this error does not constitute reversible plain error because Rouland was sentenced to a within-Guidelines sentence of 30 months and Rouland has failed to demonstrate how a fuller explanation" } ]

[ { "docid": "22840406", "title": "", "text": "intended to augment or diminish that right in any way; it rather appears that they were merely intended to preserve prior law with respect to interstate transfers. Thus we are asked to take a hypothetical and possibly non-existent conflict between a minor provision of the Act which relates to transfer mechanics (the Art. IV(a) proviso) and prior federal law (28 U.S.C. § 2241) and to use it as the touchstone for an interpretation of the rest of the Act that would vitiate its operation insofar as it affects federal detainers, since virtually all federal transfers are conducted pursuant to the writ. This, in turn, would substantially impair the operation of the Agreement as a whole, since federal detainers form a large percentage of all detainers outstanding. Given this choice, we are constrained to hold that, whether or not a writ of habeas corpus ad prosequendum constitutes a “detainer,” see United States v. Mauro, supra, once a federal detainer has been lodged against a state prisoner the habeas writ constitutes a “written request for temporary custody” within the meaning of Article IV of the Detainers Act. Turning to whether the government violated the limitations of the Act in this case, Article IV(e) provides: “If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V(e), hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” Appellant argues that the government violated this provision by returning him to Massachusetts custody on June 14, 1974, prior to trial. The provision, however, which is intended to avoid the disruptions in a prisoner’s rehabilitation occasioned by repeated transfers between jurisdictions, is thus for his benefit and is waivable. Here, appellant himself requested the transfer and by doing so waived his objection to it under Article IV(e) Article IV(c), however, provides in addition that: “[T]rial shall be commenced within one hundred and twenty days of the arrival of the prisoner in the" } ]

[ { "docid": "17082240", "title": "", "text": "as well as damages. The pro se complaint alleged that plaintiff was not in New Jersey when the crime occurred and \"that an alibi witness had died in the interval created by the prosecutor’s delay in lodging the' detainer. Plaintiff contends that had he been given the procedural rights of the Extradition Act, the Pennsylvania courts would not have permitted his transfer. The district judge dismissed the complaint for failure to state a claim. Adams v. Cuyler, 441 F.Supp. 556 (E.D.Pa.1977). Adams received a copy of the request for temporary custody delineating the nature of the indictment lodged against him, but this notice did not contain a copy of the Agreement. Plaintiff contends that the failure to advise him of his right under Article IV of the Agreement to petition the governor for review of the custody request, as well as the absence of any pretransfer hearing provisions, constitute due process violations. He asserts, also, that the refusal of state authorities to apply the hearing requirement of the Extradition Act denies the affected prisoners equal protection under the law. I. The Interstate Agreement on Detainers is a compact among 47 states and the United States. United States ex rel. Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975). It was designed to end the many abuses of the detainer system, and to minimize disruption of the rehabilitative process by giving prisoners a means of insuring expeditious disposition of outstanding criminal charges. As discussed in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), the Agreement is an improvement, from both the prisoners’ and states’ viewpoints, over previous detainer arrangements. Before embarking on an examination of the plaintiff’s contention, we must determine if statutory construction will negate the need to confront the constitutional challenges. Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). We turn, therefore, to a review of the pertinent parts of the Detainer Agreement. Article III of the Agreement provides that a person serving a term of imprisonment is to be given notice of a detainer lodged against" }, { "docid": "1331407", "title": "", "text": "before the Pennsylvania Supreme Court. Even though this second appellate counsel failed to argue the ineffectiveness issue, Diggs’ petition was granted and a third appellate counsel was appointed to argue his appeal. On June 17, 1982, however, the Pennsylvania Supreme Court dismissed the appeal as improvidently granted. 498 Pa. 360, 446 A.2d 600 (1982). This habeas corpus action followed. II. Interstate Agreement on Detainers Act (IADA) The IADA, to which Pennsylvania and the United States are parties, establishes procedures by which a member state, including the United States, may procure a prisoner from another member jurisdiction for trial. The IADA may be triggered when the state in which the trial is to be had, the receiving state, lodges a “detain-er” with the state in which a prisoner is incarcerated, the sending state. The prisoner is transferred when the receiving state presents a “written request for temporary custody” to the appropriate authorities in the sending state. Once the prison er arrives in the receiving state, Article IV(c) of the IADA requires that his trial start within 120 days. The IADA further provides in Article IV(e) that if the prisoner is returned to the sending state before trial, the charges against him must be dismissed. Diggs contends that these speedy trial and anti-shuttling provisions were violated in his prosecution. Diggs relies largely on United States v. Mauro, 436 U.S. 340, 349, 98 S.Ct. 1834, 1841-42, 56 L.Ed.2d 329 (1978), in which the Supreme Court held that a writ of habeas corpus ad prosequendum issued by a federal district court is not a “detainer” for purposes of the IADA although, when preceded by a proper detainer, the writ can serve as a “written request for temporary custody” which, if honored, will trigger the speedy trial and anti-shuttling provisions of the IADA. Building his argument on Mauro, Diggs contends that the Dauphin County capiases were detainers under the IADA so that his transfer to that county pursuant to the writ of habeas corpus ad prosequen-dum triggered the IADA. Thus, in his view, his return to federal custody after his arrival in Dauphin County required" }, { "docid": "17078033", "title": "", "text": "in a jurisdiction prior to the return of the prisoner to the original place of incarceration. Any charges left untried after the prisoner has been returned to the original place of incarceration will be dismissed with prejudice. United States v. Mauro, supra; United States v. Ford, 550 F.2d 732 (2d Cir. 1977), aff’d sub nom., United States v. Mauro. Article IV provides a means by which a prosecutor, who has lodged a detainer against a prisoner in another participating jurisdiction, can secure temporary custody of a prisoner for disposition of the outstanding charges against the prisoner. Once a prosecuting authority has gained temporary custody over a prisoner by a “written request” to the jurisdiction of incarceration (Art. IV(a)), two limitations are placed on the “requesting” prosecutor. Article IV(c) requires that trial must commence within 120 days of the prisoner’s arrival in the requesting jurisdiction, unless a continuance is granted for good cause in open court with the prisoner or his counsel present. Ridgeway v. United States, 558 F.2d 357 (6th Cir. 1977) cert. denied, 436 U.S. 946, 98 S.Ct. 2850, 56 L.Ed.2d 788 (1978). Article IV(e) provides: “If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” Thus, if a prosecuting jurisdiction takes the initiative to bring a prisoner, against whom it has lodged a detainer, from the jurisdiction of incarceration into its temporary custody for disposition of outstanding charges against the prisoner, the requesting jurisdiction must complete the prosecution before returning the prisoner to the jurisdiction of incarceration. See United States v. Cyphers, 556 F.2d 630, 635 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977). Appellant contends that, pursuant to Article IV(e) of the Agreement, the federal air piracy and kidnapping indictment against him should have been dismissed because he was returned from temporary federal custody to" }, { "docid": "23621940", "title": "", "text": "jurisdiction must try the prisoner within 120 days of his arrival in that jurisdiction. Further, if the requesting jurisdiction obtains custody of the prisoner, it must try him before he is returned to the custody of the original jurisdiction. Failure to do so requires a dismissal of the charges against the prisoner. Article IV(e). The basic goal of the Act is to prevent transfers back and forth between competing jurisdictions, its theory being that such transfers undermine the right to a speedy trial and the rehabilitative process of the system in which the prisoner is currently serving a sentence. The Supreme Court in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), considered the scope of IADA when a federal jurisdiction secured the presence of a state prisoner through the use of writs of habeas corpus ad prosequendum. The Court held that such writs are not detainers for purposes of the Agreement, id. at 360-61, 98 S.Ct. at 1846-47, but did hold that a writ of habeas corpus ad prosequendum was a “ ‘written request for temporary custody’ within the meaning of Article IV of the Agreement,” id. at 361, 98 S.Ct. at 1847. Once the Federal Government lodges a detainer against a prisoner with state officials, the Agreement by its express terms becomes applicable and the United States must comply with its provisions. It matters not whether the Government presents the prison authorities in the sending state with a piece of paper labeled “request for temporary custody” or with a writ of habeas corpus ad prosequendum demanding the prisoner’s presence in federal court on a certain day; in either case the United States is able to obtain temporary custody of the prisoner. Because the detainer remains lodged against the prisoner until the underlying charges are finally resolved, the Agreement requires that the disposition be speedy and that it be obtained before the prisoner is returned to the sending state. Id. at 361-62, 98 S.Ct. at 1848. Thus, after Mauro, transfers back and forth between competing jurisdictions through the use of writs of habeas corpus" }, { "docid": "19313873", "title": "", "text": "that our entertaining this particular application, in the wake of the stir caused by the initial decision in United States v. Mauro, 414 F.Supp. 358 (E.D.N.Y.1976), be interpreted as wholly discordant with recent cases which hold that a violation of the IAD may not be raised in a collateral proceeding. Edwards v. United States, 564 F.2d 652 (2nd Cir. 1977) ; see also United States v. Palmer, 574 F.2d 164 (3 Cir. 1978). In fact, the conclusion we reach in this matter is based upon reasoning consistent with that found in those decisions. Having decided that jurisdiction should be exercised in the instant case, we proceed to determine the remaining substantive issue of whether a criminal defendant, after entering a voluntary guilty plea, is entitled to a dismissal of the indictment because of the government’s violation of Article IV(e) of the IAD. We hold that this right under the Act does not survive a defendant’s voluntary plea of guilty. Bambulas v. United States, No. 76-87-C3 (D.Kan., September 7, 1977), aff’d 571 F.2d 525 (10th Cir. 1978); United States v. Draper, No. 78-3040 (D.Kan., September 26, 1978) . In reaching this conclusion we initially had to ascertain the nature of the right protected by Article IV(e). The right this section is intended to secure is that of a prisoner to rehabilitation free of the interruptions occasioned by repeated transfers. United States v. Ford, 550 F.2d 732, 742 (2nd Cir. 1977), aff’d United States v. Mauro, --- U.S. ---, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). In our prior order we held that the right to uninterrupted rehabilitation is waivable. It is a right that chiefly inures to the benefit of the prisoner and therefore may be waived by his actions. United States v. Ford, 550 F.2d at 742. To hold otherwise would foreclose any prisoner’s request for pre-trial return to the sending jurisdiction for a parole hearing or other legitimate purpose since it would result in automatic dismissal of the indictment. Moreover, a contrary holding would be anomalous in light of the waivability of such fundamental, constitutional rights as the right" }, { "docid": "19313883", "title": "", "text": "a holding of forfeiture upon a defendant’s failure to object prior to entering a plea of guilty, regardless of whether or not he is aware of the potential remedy. In addition to the legal conclusion that petitioner forfeited his remedy under IV(e) by failing to assert it prior to pleading guilty, the court has before it credible evidence that petitioner requested the return to Missouri state prison prior to completion of his federal prosecution so that he might receive adequate medical treatment. Not only does this negate petitioner’s claim of prejudice, but, in such a case, a prisoner is estopped from claiming the remedy under Article IV(e). United States v. Scallion, 548 F.2d 1168, 1170 (5th Cir. 1977). This view finds implicit support in the United States Supreme Court’s affirmance of United States v. Ford, supra, where the Court of Appeals for the Second Circuit held that Ford waived his claim under Article IV(e) by requesting his return to state prison. United States v. Mauro, 436 U.S. 340, 348 n. 12, 98 S.Ct. 1834, 1841, 56 L.Ed.2d 329 (1978). Finally, we reject petitioner’s contention that the court should have noted the government’s violation of the IAD from the court file and apprised petitioner of his remedy thereunder before accepting his plea. It is not the function of the court to advise a defendant of every statute which might have some favorable - bearing upon his case. See United States v. Blankenship, 548 F.2d 1118 (4th Cir. 1976), cert. denied 425 U.S. 978, 96 S.Ct. 2182, 48 L.Ed.2d 803; United States v. Williams, 544 F.2d 1215 (4th Cir. 1976). It cannot be said that this procedural defect in the prosecution of petitioner’s case had any effect whatsoever on his decision to plead guilty or on the fundamental fairness of the proceedings against him. Nor has petitioner demonstrated any actual prejudice to, his rehabilitation as a result of the challenged transfers. The record reflects that petitioner clearly admitted his guilt in open court to passing a money order which was purchased by him for 50 cents and altered so that he obtained" }, { "docid": "19313882", "title": "", "text": "Appeals recently held that the IAD does not apply to transfers after trial for sentencing, United States v. Johnson, No. 77-1979 (10th Cir., March 31, 1978), unpublished. Thus, we can perceive of no instance where a violation of the Agreement would occur after completion of the trial. Accordingly, it is equitable to require that a violation be objected to either prior to or during trial and not in a post-trial collateral proceeding. Petitioner asserts that he had “good cause” for failing to timely object to the challenged transfers in that he was unaware of his rights under Article IV(e) prior to entering a plea of guilty. Awareness of a fundamental constitutional right is not necessarily required for a legally effective waiver. Schneckloth v. Bustamonte, supra. It follows that awareness need not be present for this court to determine that a statutory right has been forfeited. The public’s substantial interest in the preservation of convictions based upon voluntary guilty pleas outweighs a prisoner’s interest in the statutory remedy for a violation of Article IV(e). This justifies a holding of forfeiture upon a defendant’s failure to object prior to entering a plea of guilty, regardless of whether or not he is aware of the potential remedy. In addition to the legal conclusion that petitioner forfeited his remedy under IV(e) by failing to assert it prior to pleading guilty, the court has before it credible evidence that petitioner requested the return to Missouri state prison prior to completion of his federal prosecution so that he might receive adequate medical treatment. Not only does this negate petitioner’s claim of prejudice, but, in such a case, a prisoner is estopped from claiming the remedy under Article IV(e). United States v. Scallion, 548 F.2d 1168, 1170 (5th Cir. 1977). This view finds implicit support in the United States Supreme Court’s affirmance of United States v. Ford, supra, where the Court of Appeals for the Second Circuit held that Ford waived his claim under Article IV(e) by requesting his return to state prison. United States v. Mauro, 436 U.S. 340, 348 n. 12, 98 S.Ct. 1834, 1841," }, { "docid": "17078037", "title": "", "text": "1848. We agree with appellant that Mauro and Article IV(e) mandate that when a state prisoner, subject to a detainer, is taken into federal custody by a writ of habeas corpus ad prosequendum “for the purpose of permitting prosecution” on pending federal charges, disposition of those charges must precede the prisoner’s return to state custody. Failure to do so will result in dismissal of the charges against the prisoner, with prejudice. However, we do not find Mauro dis-positive of the question presented in this case; that is, whether there is a violation of Article IV(e) where a prosecutor makes a “written request for temporary custody” at the behest of, and as a courtesy to defense counsel, and where the purpose is not to facilitate prosecution of outstanding federal charges but to permit defense counsel to confer with his client concerning the charges. When the prisoner is thereafter returned to state custody without a disposition of outstanding federal charges we do not believe the Agreement has been violated. We conclude that neither Mauro nor the Agreement contemplates this situation. The purpose of Article IV is to provide “the means by which a prosecutor who has lodged a detainer against a prisoner in another State can secure the prisoner’s presence for disposition of the outstanding charges.” United States v. Mauro, supra, 436 U.S. at 351, 98 S.Ct. 1842. See also United States v. Ridgeway, supra, 558 F.2d at 360; Unites States v. Ford, supra, 550 F.2d at 741; United States v. Mauro, 544 F.2d 588, 590-91 (2d Cir. 1976), rev’d, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). The legislative history surrounding the adoption of the Agreement by the Congress on behalf of the United States and the District of Columbia is relatively sparse. Some insight is provided, however, as to the reasons for including Article IV in the Agreement: The agreement also provides a method whereby prosecuting authorities may secure prisoners serving sentences in other jurisdictions for trial before the expiration of their sentences and before the passage of time has dulled the memory or made witnesses unavailable. #" }, { "docid": "17078038", "title": "", "text": "contemplates this situation. The purpose of Article IV is to provide “the means by which a prosecutor who has lodged a detainer against a prisoner in another State can secure the prisoner’s presence for disposition of the outstanding charges.” United States v. Mauro, supra, 436 U.S. at 351, 98 S.Ct. 1842. See also United States v. Ridgeway, supra, 558 F.2d at 360; Unites States v. Ford, supra, 550 F.2d at 741; United States v. Mauro, 544 F.2d 588, 590-91 (2d Cir. 1976), rev’d, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). The legislative history surrounding the adoption of the Agreement by the Congress on behalf of the United States and the District of Columbia is relatively sparse. Some insight is provided, however, as to the reasons for including Article IV in the Agreement: The agreement also provides a method whereby prosecuting authorities may secure prisoners serving sentences in other jurisdictions for trial before the expiration of their sentences and before the passage of time has dulled the memory or made witnesses unavailable. # * * * .* * As was stated, prosecutors also can initiate proceedings to obtain trials of prisoners in other jurisdictions against whom charges are pending or detainers have been lodged. A request is made to appropriate officials in the jurisdiction in which the prisoner is being held. Unless the request is disapproved by the Governor of the State having custody within 30 days, temporary custody is given to the prosecutor for the purpose of transferring the prisoner and holding trial. S.Rep.No.91-1356, 91st Cong., 2d Sess. (1970), reprinted in [1970] U.S.Code Cong. & Admin.News, 4864, 4865. Furthermore, Article IV(a) of the Agreement provides, in part: (a) The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability. Thus, the clear intent of Article IV is" }, { "docid": "17078036", "title": "", "text": "with state prison officials, the Agreement by its express terms becomes applicable and the United States must comply with its provisions. And once a detainer has been lodged, the United States has precipitated the very problems with which the Agreement is concerned. Because at that point the policies underlying the Agreement are fully implicated, we see no reason to give an unduly restrictive meaning to the term “written request for temporary custody.” It matters not whether the Government presents the prison authorities in the sending State with a piece of paper labeled “request for temporary custody” or with a writ of habeas corpus ad prosequendum demanding the prisoner’s presence in federal court on a certain day; in either case the United States is able to obtain temporary custody of the prisoner. Because the detainer remains lodged against the prisoner until the underlying charges are finally resolved, the Agreement requires that the disposition be speedy and that it be obtained before the prisoner is returned to the sending State. 436 U.S. at 361-62, 98 S.Ct. at 1848. We agree with appellant that Mauro and Article IV(e) mandate that when a state prisoner, subject to a detainer, is taken into federal custody by a writ of habeas corpus ad prosequendum “for the purpose of permitting prosecution” on pending federal charges, disposition of those charges must precede the prisoner’s return to state custody. Failure to do so will result in dismissal of the charges against the prisoner, with prejudice. However, we do not find Mauro dis-positive of the question presented in this case; that is, whether there is a violation of Article IV(e) where a prosecutor makes a “written request for temporary custody” at the behest of, and as a courtesy to defense counsel, and where the purpose is not to facilitate prosecution of outstanding federal charges but to permit defense counsel to confer with his client concerning the charges. When the prisoner is thereafter returned to state custody without a disposition of outstanding federal charges we do not believe the Agreement has been violated. We conclude that neither Mauro nor the Agreement" }, { "docid": "23478659", "title": "", "text": "U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 233, 34 L.Ed.2d 172 (1973). Cf. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Federal habeas corpus relief not available to state prisoner who failed to make timely objection to use of allegedly inadmissible evidence at trial); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (failure of defendant to make timely objection to standing trial in prison clothing precluded court from granting relief). In light of these decisions, it cannot be said that the statutory rights defined in the IAD — which clearly are not derived from the Constitution — are so fundamental as to preclude acceptance by a court of a voluntary plea of guilty. Accordingly, we hold that a violation of Article IV(e) of the IAD is a non-jurisdictional error and, as such, is waivable by a criminal defendant. We note for the record that other courts when confronted with this issue have reached a similar result. See, e. g., United States v. Palmer, supra at 167 (“. the violation of a statutory provision such as Article IV(e) is not sufficiently important to deny a court jurisdiction to entertain a guilty plea where the defendant fails to raise the issue in a timely manner”); United States v. Ford, 550 F.2d 732, 742 (2d Cir. 1977), aff’d sub nom. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978) (“The provision [Art. IV(e)], . . . which is intended to avoid the disruption in a prisoner’s rehabilitation occasioned by repeated transfers between jurisdictions, is thus for his benefit and is waivable”); Strawderman v. United States, 436 F.Supp. 503, 504 (E.D.Va.1977) (“Assuming there was a violation of the Agreement, that violation is only statutory, not rising to constitutional propositions. Accordingly, petitioner’s claim is deemed to be waived by the entry and acceptance of his guilty plea . . . .”) Petitioner Camp maintains finally that, in any event, he cannot be said to have waived a right of" }, { "docid": "2805686", "title": "", "text": "Act (“IADA\"), 18 U.S.C.App. III. The IADA “prescribes procedures by which a member State may obtain for trial a prisoner incarcerated in another member jurisdiction and by which the prisoner may demand the speedy disposition of certain charges pending against him in another jurisdiction.” United States v. Mauro, 436 U.S. 340, 343, 98 S.Ct. 1834, 1838, 56 L.Ed.2d 329 (1978). The procedures are triggered only when a “detainer” is filed with the custodial (sending) State by another (receiving) State having untried charges pending against the prisoner. Id. Stephen Rossetti’s claims are founded upon Article III of the IADA. Article III provides that a prisoner against whom a detainer has been filed may demand speedy disposition of the charges pending against him in the jurisdiction that filed the detain-er by submitting a written notice and request for final disposition to the warden of the custodial facility. Once such a notice and request has been filed, various rights accrue to the prisoner under Article III. In particular, Article 111(d) provides that once the receiving state accepts temporary custody of the prisoner, he must be tried before he can be returned to the custody of the original jurisdiction. Article 111(d) also states the penalty for premature return of the prisoner: If trial is not had on any indictment, information, or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. A prisoner who understands his rights under these “anti-shuttling” provisions of Article III can, however, voluntarily waive those rights. See United States v. Black, 609 F.2d 1330, 1334 (9th Cir.), cert. denied, 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980); United States v. Eaddy, 595 F.2d 341, 344 (6th Cir.1979); United States v. Ford, 550 F.2d 732, 735, 742 (2nd Cir.), aff'd, 436 U.S. 340 (1978); United States v. Scallion, 548 F.2d 1168, 1170 (5th Cir.), cert. denied, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978). Stephen" }, { "docid": "19313874", "title": "", "text": "1978); United States v. Draper, No. 78-3040 (D.Kan., September 26, 1978) . In reaching this conclusion we initially had to ascertain the nature of the right protected by Article IV(e). The right this section is intended to secure is that of a prisoner to rehabilitation free of the interruptions occasioned by repeated transfers. United States v. Ford, 550 F.2d 732, 742 (2nd Cir. 1977), aff’d United States v. Mauro, --- U.S. ---, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). In our prior order we held that the right to uninterrupted rehabilitation is waivable. It is a right that chiefly inures to the benefit of the prisoner and therefore may be waived by his actions. United States v. Ford, 550 F.2d at 742. To hold otherwise would foreclose any prisoner’s request for pre-trial return to the sending jurisdiction for a parole hearing or other legitimate purpose since it would result in automatic dismissal of the indictment. Moreover, a contrary holding would be anomalous in light of the waivability of such fundamental, constitutional rights as the right to counsel or to a jury trial. United States v. Palmer, supra. Thus, we remain convinced, despite petitioner’s vigorous statutory construction argument, that the right to unimpeded rehabilitation under the IAD is waivable. There are basically two separate methods by which criminal defendants may yield or lose fundamental rights. One method is that of “waiver” which means that the accused has engaged in conduct which may be characterized as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). A separate concept is that of “procedural default” which involves the manner in which an accused may forfeit rights by not asserting them prior to or during trial. The right of a prisoner to uninterrupted rehabilitation is purely statutory and certainly does not embody a fundamental constitutional right of the sort which can be waived only under the strict standard of Johnson v. Zerbst, supra. Strawderman v. United States, 436 F.Supp. 503 (E.D.Va.1977); See also United States v. Williams, 544" }, { "docid": "17082241", "title": "", "text": "protection under the law. I. The Interstate Agreement on Detainers is a compact among 47 states and the United States. United States ex rel. Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975). It was designed to end the many abuses of the detainer system, and to minimize disruption of the rehabilitative process by giving prisoners a means of insuring expeditious disposition of outstanding criminal charges. As discussed in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), the Agreement is an improvement, from both the prisoners’ and states’ viewpoints, over previous detainer arrangements. Before embarking on an examination of the plaintiff’s contention, we must determine if statutory construction will negate the need to confront the constitutional challenges. Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). We turn, therefore, to a review of the pertinent parts of the Detainer Agreement. Article III of the Agreement provides that a person serving a term of imprisonment is to be given notice of a detainer lodged against him by the authorities of another state and has the right to demand disposition of the underlying indictment or criminal complaint. If the prisoner requests that the pending case be processed, he is then transferred to the accusing state where trial must be had within 180 days. Article 111(a). This article enables the prisoner to compel the prosecuting authorities in the accusing state to dispose of all pending charges. See Article 111(d). Article IV is addressed to the prosecution and allows the authorities of the charging state to secure temporary custody of the prisoner so that he may be tried on outstanding indictments or complaints. Section (a) of that Article provides a simplified procedure for arranging transfer of the prisoner. The prosecutor, with the approval of the court that issued the indictments or complaint, serves a written notice upon the authorities of the asylum state. After a 30-day period when the governor of the asylum state may disapprove the request either upon his own motion or that of the prisoner, custody is granted to the" }, { "docid": "17078032", "title": "", "text": "against him. It further provides cooperative proceedings governing temporary transfers of prisoners for purposes of trial on outstanding charges among the participating jurisdictions to aid such disposition. In either case, the provisions of the Agreement are applicable only when a participating jurisdiction, having untried charges pending against a prisoner, first lodges a detainer with the participating jurisdiction where the prisoner is incarcerated. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). The central provisions of the Agreement are Article III and Article IV. Article III sets forth the procedure by which a prisoner against whom a detainer has been filed can demand a speedy disposition of the charges giving rise to the detainer. If a prisoner demands a speedy trial pursuant to the guidelines of Article III, the jurisdiction which filed the detainer is required to bring him to trial within the Article 111(a) time limit. Failure to comply will result in a dismissal of the outstanding charges, with prejudice. Article 111(d) also requires the disposition of all outstanding charges in a jurisdiction prior to the return of the prisoner to the original place of incarceration. Any charges left untried after the prisoner has been returned to the original place of incarceration will be dismissed with prejudice. United States v. Mauro, supra; United States v. Ford, 550 F.2d 732 (2d Cir. 1977), aff’d sub nom., United States v. Mauro. Article IV provides a means by which a prosecutor, who has lodged a detainer against a prisoner in another participating jurisdiction, can secure temporary custody of a prisoner for disposition of the outstanding charges against the prisoner. Once a prosecuting authority has gained temporary custody over a prisoner by a “written request” to the jurisdiction of incarceration (Art. IV(a)), two limitations are placed on the “requesting” prosecutor. Article IV(c) requires that trial must commence within 120 days of the prisoner’s arrival in the requesting jurisdiction, unless a continuance is granted for good cause in open court with the prisoner or his counsel present. Ridgeway v. United States, 558 F.2d 357 (6th Cir. 1977) cert. denied, 436" }, { "docid": "2885147", "title": "", "text": "SCHROEDER, Circuit Judge: Appellant raises four issues in his appeal from conviction of two counts of bank robbery in violation of 18 U.S.C. 2113(a). We affirm both convictions. Appellant urges first that his convictions must be reversed because of violation of his rights under the Interstate Agreement on Detainers Act. 18 U.S.C.App. Congress enacted the statute in an attempt to systematize the transfer of prisoners between different facilities and jurisdictions in connection with multiple convictions and charges. The legislation was designed to remedy many of the widespread disputes and delays which occurred before enactment of the agreement. See United States v. Ford, 550 F.2d 732 (2d Cir. 1977), aff'd., 436 U.S. 340, 98 S.Ct. 1384, 56 L.Ed.2d 329 (1978). Article IV of the Agreement provides: (a) The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated . (e) If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. The record on the status of appellant’s custody during the relevant period is not altogether clear. It appears that appellant was being held in a state facility in connection with federal and state charges when he was approached by a state officer seeking his cooperation with regard to another state offense. Appellant agreed to cooperate, provided he was transferred to another state facility. After his transfer appellant was in state custody, but his records were marked “Hold for U.S. Marshals” by a state officer. Appellant now contends that this “hold” and his" }, { "docid": "17078061", "title": "", "text": "of the Agreement sets forth some of the reasons for its adoption, to wit: Article I The party States find that charges outstanding against a prisoner, detainers based on untried indictments, informations, or complaints and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party States and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. The party States also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures. See also United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); Ridgeway v. United States, 558 F.2d 357 (6th Cir. 1977), cert. denied, 436 U.S. 946, 98 S.Ct. 2850, 56 L.Ed.2d 788 (1978); United States v. Ford, 550 F.2d 732 (2d Cir. 1977), affd sub nom., United States v. Mauro, supra. . This court held to the same effect in Ridgeway v. United States, supra, 558 F.2d 357 (6th Cir.), cert. denied, 436 U.S. 946, 98 S.Ct. 2856, 56 L.Ed.2d 788 (1977). . 436 U.S. 340, 361 n. 26, 98 S.Ct. 1834, 56 L.Ed.2d 329. . We recognize that Article IV(e) is for the benefit of the prisoner and is waivable. United States v. Ford, supra, 550 F.2d at 735; United States v. Palmer, 574 F.2d 164 (3rd Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (1978). In light of our decision, however, we do not reach the question whether the appellant’s rights under IV(e) were waived because appellant was brought into federal custody at the request of his attorney. . 18 U.S.C. § 1201(a)(3)." }, { "docid": "17078034", "title": "", "text": "U.S. 946, 98 S.Ct. 2850, 56 L.Ed.2d 788 (1978). Article IV(e) provides: “If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” Thus, if a prosecuting jurisdiction takes the initiative to bring a prisoner, against whom it has lodged a detainer, from the jurisdiction of incarceration into its temporary custody for disposition of outstanding charges against the prisoner, the requesting jurisdiction must complete the prosecution before returning the prisoner to the jurisdiction of incarceration. See United States v. Cyphers, 556 F.2d 630, 635 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977). Appellant contends that, pursuant to Article IV(e) of the Agreement, the federal air piracy and kidnapping indictment against him should have been dismissed because he was returned from temporary federal custody to his original place of incarceration, while under a detainer, without disposition of the federal charges outstanding against him. Appellant argues that the decision in United States v. Mauro, supra, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329, is dispositive of this claim and requires dismissal of the federal indictment against him. In Mauro, the Supreme Court held that issuance of a writ of habeas corpus ad prosequendum by a federal court to state authorities, to secure a state prisoner for trial on criminal charges, is not a detainer within the meaning of the Agreement and therefore does not trigger its application, 436 U.S. at 349, 98 S.Ct. 1834. However, where the United States lodged a detainer against a state prisoner, triggering application of the Agreement’s provisions, a writ of habeas corpus ad prosequendum will be considered a “written request for temporary custody” within the meaning of Article IV and the United States will be bound by the terms of the Agreement. The Court stated: Once the Federal Government lodges a detainer against a prisoner" }, { "docid": "23621939", "title": "", "text": "with well-settled principles, we will first examine the statutory IADA claim and then, if necessary, turn to the constitutional ineffective assistance of counsel claim. See Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974); Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Congress enacted the Interstate Agreement on Detainers Act in 1970, Article 11(a), 18 U.S.C. App. at 1395 (1976), to authorize the United States to join with many of the States in eliminating problems associated with the transfer of prisoners currently serving a sentence in one state or territorial jurisdiction to another jurisdiction seeking to prosecute him on different or related charges. When a detainer is lodged against the prisoner while he is serving a sentence in another jurisdiction, the Act sets forth limitations on the transfers that may be made to the demanding jurisdiction. For example, under Article IV of the Act, if the prisoner’s presence is obtained in a jurisdiction lodging a detainer against him, that jurisdiction must try the prisoner within 120 days of his arrival in that jurisdiction. Further, if the requesting jurisdiction obtains custody of the prisoner, it must try him before he is returned to the custody of the original jurisdiction. Failure to do so requires a dismissal of the charges against the prisoner. Article IV(e). The basic goal of the Act is to prevent transfers back and forth between competing jurisdictions, its theory being that such transfers undermine the right to a speedy trial and the rehabilitative process of the system in which the prisoner is currently serving a sentence. The Supreme Court in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), considered the scope of IADA when a federal jurisdiction secured the presence of a state prisoner through the use of writs of habeas corpus ad prosequendum. The Court held that such writs are not detainers for purposes of the Agreement, id. at 360-61, 98 S.Ct. at 1846-47, but did hold that a writ of habeas corpus ad prosequendum" }, { "docid": "2805687", "title": "", "text": "custody of the prisoner, he must be tried before he can be returned to the custody of the original jurisdiction. Article 111(d) also states the penalty for premature return of the prisoner: If trial is not had on any indictment, information, or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. A prisoner who understands his rights under these “anti-shuttling” provisions of Article III can, however, voluntarily waive those rights. See United States v. Black, 609 F.2d 1330, 1334 (9th Cir.), cert. denied, 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980); United States v. Eaddy, 595 F.2d 341, 344 (6th Cir.1979); United States v. Ford, 550 F.2d 732, 735, 742 (2nd Cir.), aff'd, 436 U.S. 340 (1978); United States v. Scallion, 548 F.2d 1168, 1170 (5th Cir.), cert. denied, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978). Stephen Rossetti claims that he was denied his sixth amendment right to effective assistance of counsel when his defense counsel failed to explore or assert at trial the defense that the United States had violated Article III by returning him to the custody of Massachusetts after a detainer had been filed and temporary custody secured, but before trial on federal charges . Rossetti claims that had his counsel heeded Rossetti’s requests to pursue this defense, the result would have been the dismissal of the indictment. Because the facts clearly indicate that Rossetti waived any defense he had under Article III of the IADA, we reject Rossetti’s sixth amendment argument. Stephen Rossetti was convicted in a Massachusetts court of conspiracy to assault and rob, and was sentenced to imprisonment of 15-20 years at MCI Walpole. The United States lodged a detainer based on the federal indictment underlying the instant conviction at MCI Walpole against Rossetti on December 27, 1982. On December 31, 1982, Rossetti delivered a notice and request for disposition of the federal indictment with the" } ]

[ { "docid": "21424265", "title": "", "text": "made the payment. Bankers Trust Co. v. Feldesman, 676 F.Supp. 496, 504 (S.D.N.Y.1987) (“If Bankers was able to postpone accrual of its claim until it had paid its legal expenses, then Bankers could keep its claim open indefinitely simply by protracting the litigation.”). b. Loss of a legitimate debt and related expenses. In this second category, Bankers claims (1) loss of a legitimate debt in 1976 when, relying on defendants’ misrepresentations, it accepted a bankruptcy reorganization plan that would have allowed Bankers to recover only 17.5% of its allowed claim; (2) loss of the use of those funds from that time to present; and (3) an additional loss in funds which might have been used to pay the debt in 1981-82, but were instead fraudulently transferred by the defendants. Normally of course, we would simply instruct the district court to determine what portion of these injuries Bankers discovered or should have discovered after August 24, 1978, and order that Bankers could not recover on any injury which it discovered or should have discovered before that date. However, in this case, we hold that Bankers’ damages in this category are “unrecoverable”, at least at this time, because “their accrual is speculative” and “their amount and nature unprovable”. Zenith, 401 U.S. at 339, 91 S.Ct. at 806; Berkey Photo, 603 F.2d at 295. As discussed previously, Bankers’ RICO claim for injuries suffered as a result of its lost debt overlaps with the ongoing proceedings in the bankruptcy court. This is because (1) Bankers was injured by the identical transactions that injured the bankrupt corporation, and (2) should the corporation, through its trustee in bankruptcy, recover for its injury, Bankers’ injury will itself be reduced. For instance, should the bankruptcy trustee ultimately recover all the fraudulently transferred assets, Bankers’ injury could be significantly reduced; conversely should the assets never be recovered, or should the bankruptcy court order the claim abandoned, Bankers’ injury would be much more severe. Trebling and attorney’s fees aside, congress intended the basic award under civil RICO to compensate the plaintiff for injury to “his property or business.” 18 U.S.C." } ]

[ { "docid": "23629431", "title": "", "text": "by not trebling the amount that remained uncollected on amounts owed to it by Cross-Appellants at the time it instituted this lawsuit, as well as the attorney fees expended in obtaining the New Jersey judgments and in postjudgment collection efforts. Cross-appellants contend that attorney fees were improperly considered RICO damages. 1. “Lost Debt” Damages. Stochastic premises its claim of entitlement to a trebling of the amount owed it by Cross-Appellants when it instituted this lawsuit principally upon our decision in Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). In that case, Bankers Trust had consented, as a creditor, to a debtor’s reorganization plan under which Bankers Trust received only 17.5% of its allowed claim. Id. at 1098. Neither the court nor the creditors, however, were aware that the debtor had fraudulently conveyed ownership of a corporation with net assets in excess of $3 million. Id. Bankers Trust subsequently claimed RICO injury for, inter alia, its “loss of legitimate debt ... when, relying on defendants’ misrepresentations, it accepted [the] bankruptcy reorganization plan_” Id. at 1105. We held that the damages were “ ‘unrecoverable,’ at least at [the time of the litigation], because ‘their accrual is speculative’ and.‘their amount and nature unprovable’” in light of the ongoing proceeding in the bankruptcy court to remedy the fraudulent conveyance. Id. at 1106 (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 339, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971); Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 295 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980)). Stochastic asserts that in accordance with Bankers Trust, because the Eagle bankruptcy was terminated without any payment to creditors and the amount of Stochastic’s “lost debt” was definitively determined by entry of the New Jersey judgments, that amount should have been considered part of Stochastic’s RICO injury. We disagree. The amount of the lost debt in the instant case, as in Bankers Trust, remains unprovable. In Bankers Trust, the amount of the bank’s" }, { "docid": "23629437", "title": "", "text": "damages the ... legal fees which plaintiff incurred in obtaining the two New Jersey judgments.... [Bankers Trust, 859 F.2d at 1105.]” We disagree. Stochastic’s argument would be equivalent to a ruling in Bankers Trust that the attorney fees incurred by the bank during the debtor’s initial bankruptcy proceedings constituted RICO injury. However, Bankers Trust sought only past legal fees incurred in (1) fighting the debtor’s frivolous satellite lawsuits; (2) overcoming bribe-induced decisions in South Carolina; and (3) obtaining a revocation of the initial reorganization plan. 859 F.2d at 1105. We allowed recovery of such fees, to the extent not barred by the statute of limitations. Id. This ruling provides no basis to allow Stochastic to recover the legal fees initially expended in obtaining the New Jersey judgments. The asserted RICO violations in this case are defendants’ illegal actions in impeding Stochastic’s collection of those judgments. The Supreme Court has made it clear that a RICO injury must stem from and be proximately caused by a RICO violation. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496-97, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (“plaintiff ... can only recover to the extent that ... he has been injured in his business or property by the conduct constituting the violation” (emphasis added)); see also Holmes v. Securities Investor Protection Corp., — U.S. -,-,-, 112 S.Ct. 1311, 1318-21, 117 L.Ed.2d 532 (1992) (articulating proximate cause requirement for RICO). In the instant case, it cannot plausibly be contended that efforts to impede the collection of the New Jersey judgments proximately caused Stochastic’s prior expenditure of legal fees in obtaining the judgments. Additionally, we perceive no abuse of discretion by the district court in reducing the legal fees claimed by Stochastic to have been spent in its collection efforts from $71,976.26 to $50,000. Cross-Appellants contest the district court’s allowance of that $50,000 (trebled to $150,000) as RICO damages. Relying primarily upon Capasso v. Cigna Ins. Co., 765 F.Supp. 839, 842-43 (S.D.N.Y.1991), they argue that the attorney fees cannot be RICO damages because they were only incidental and indirect consequences of any RICO violations" }, { "docid": "10494149", "title": "", "text": "By that time, however, Bankers had incurred attorney’s fees in excess of $100,000. Complaint ¶ 34. In January 1982, Bennington Court obtained advances of more than $8,900,000 from KB Business Credit Inc. (“KBBC”) by means of wire transfers of funds, which were then disbursed to the bank accounts of several of the corporate defendants. When these defendants failed to repay the funds so obtained, KBBC instituted a RICO action in this Court seeking to recover treble the amount of its damages. Complaint ¶¶36-38. On February 1, 1982, trial of Bankers’ application to revoke the bankruptcy arrangement was completed. While the parties were awaiting the Court’s decision in that matter, BAC, in April 1982, conveyed its stock in Brookfield Clothes to Todd for little or no consideration. Complaint ¶ 39. Thereafter, BAC caused Todd to pledge its Brookfield Clothes stock to KBBC in order to induce KBBC to discontinue its lawsuit and thereby relieve the individual defendants of possible personal liability for the advances which had not been repaid to KBBC. Despite this pledge, Todd was not a defendant in the action brought by KBBC. Complaint ¶ 40. Moreover, in addition to the Brookfield Clothes stock transfer, BAC secreted and conveyed without consideration other of its assets during the pendency of the revocation proceeding as a further impediment to satisfaction of the claims of Bankers and other creditors. Complaint ¶ 41. Finally, on June 25, 1982, the Bankruptcy Court for this District revoked the Chapter XI plan, finding, inter alia, that confirmation of the plan had been procured by fraud. See In re Braten Apparel Corp., 21 B.R. 239 at 258 (Bkrtcy.S.D.N.Y.1982) (Babitt, J.), aff’d, 26 B.R. 1009 (S.D.N.Y.1983). Discussion RICO’s civil damage remedy provides that: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. 18 U.S.C. § 1964. Section 1962(a) makes it unlawful for any person to invest any income derived" }, { "docid": "23629432", "title": "", "text": "relying on defendants’ misrepresentations, it accepted [the] bankruptcy reorganization plan_” Id. at 1105. We held that the damages were “ ‘unrecoverable,’ at least at [the time of the litigation], because ‘their accrual is speculative’ and.‘their amount and nature unprovable’” in light of the ongoing proceeding in the bankruptcy court to remedy the fraudulent conveyance. Id. at 1106 (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 339, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971); Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 295 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980)). Stochastic asserts that in accordance with Bankers Trust, because the Eagle bankruptcy was terminated without any payment to creditors and the amount of Stochastic’s “lost debt” was definitively determined by entry of the New Jersey judgments, that amount should have been considered part of Stochastic’s RICO injury. We disagree. The amount of the lost debt in the instant case, as in Bankers Trust, remains unprovable. In Bankers Trust, the amount of the bank’s claim was definite, but the amount of its “lost debt” was nonetheless held to be indeterminate because of the ongoing bankruptcy proceedings. Similarly, although Stochastic has obtained judgments for specific amounts, the amount of its “lost debt” cannot be determined at this time because of the ongoing efforts to collect those judgments. As Bankers Trust recognized, a debt is “lost” and thereby becomes a basis for RICO trebling only if the debt (1) cannot be collected (2) “by reason of’ a RICO violation. See § 1964(c). As stated earlier, the full amount of the judgment in the Insurance Case has now been paid to Stochastic. Nor can the judgment in the Guarantee Case, obtained after the initiation of the instant action, be regarded as “lost debt.” The district court has provided equitable relief in this case both pendente lite and in the final judgment to assure payment of the judgment in favor of Stochastic, which includes the full amount of the judgment in the Guarantee Case. It accordingly appears that Stochastic’s judgment in the Guarantee" }, { "docid": "5957016", "title": "", "text": "the defendants with conspiracy to commit bankruptcy, wire, and mail fraud for the purpose of preventing the plaintiff from collecting the outstanding judgments. The complaint alleged that the property transfers effected in the course of the conspiracy were fraudulent conveyances under state law and that the overall scheme constituted common law fraud. Thus, while not identical, the facts of Stochastic and the facts of this case are substantially similar. After a bench trial, the Stochastic court awarded judgment to the plaintiff against most of the defendants. It awarded the plaintiff $467,477.24 on the civil RICO claim, which consisted of $50,000 in legal fees expended by plaintiff in attempting to collect its state court judgments and $317,477.24 in RICO attorneys fees and expenses incurred in pursuing the RICO action. The district court determined that the plaintiff was not entitled to the amounts owed on the state court judgments or the attorneys fees spent litigating those actions. The plaintiff appealed, arguing that it was entitled to recover the amounts of its state court judgments. The Second Cir cuit, however, flatly rejected this argument. The Stochastic panel reaffirmed the principle laid down in Bankers Trust Co. v. Rhoades, that “a debt is ‘lost[,]’ and thereby becomes a basis for RICO trebling!,] only if the debt (1) cannot be collected (2) ‘by reason’ of a RICO violation.” It reasoned that “a RICO claim does not accrue until it is established that collection of the claim or judgment has been successfully frustrated.” The court held that, to the extent the plaintiff successfully collected on the state court judgments by reason of their state law fraudulent conveyance claims, those amounts would reduce the RICO injury pro tanto, before any trebling occurred. Because the plaintiffs collection efforts were ongoing (by reason of the federal court action itself), and the actual amount of its injury was indefinite and unprovable, plaintiff did not yet have standing under RICO. Here, plaintiffs do not allege that collection of the amounts owed on the state court judgments has been “successfully frustrated,” much less how any such ultimate frustration was a proximate consequence" }, { "docid": "23629439", "title": "", "text": "in this case. The most pertinent language from Capasso is the following: The defendants point out that attorneys’ fees and costs of investigation incurred as a result of defendants’ allegedly illegal acts do not qualify as RICO injuries. See, e.g., Local SS5, Hotel, Motel, etc. v. Pier 66 Co., 599 F.Supp. 761, 765 (S.D.Fla.1984); Rylewicz v. Beaton Services, Ltd., 698 F.Supp. 1391, 1395-6 (N.D.Ill.1988), aff'd, 888 F.2d 1175 (7th Cir.1989). ****** Here, it cannot reasonably be suggested that the harm contemplated by the alleged fraudulent scheme was an increase in [plaintiffs] attorneys’ fees. 765 F.Supp. at 842. The district court in Capasso immediately proceeded to point out, however, that no predicate RICO act of mail or wire fraud had been established, and to cite cases in which litigation expenses in a prior litigation were allowed as RICO damages when a RICO violation was proved. Id. at 842-43. Further, as discussed supra herein, we explicitly ruled in Bankers Trust that legal fees may constitute RICO damages when they are proximately caused by a RICO violation. See Bankers Trust, 859 F.2d at 1105. We accordingly reject Cross-Appellants’ contention that the district court improperly allowed the $50,000 legal fees expended by Stochastic in collecting the New Jersey judgments as (trebled) RICO damages. B. The Determination of Stochastic’s § 1964(c) Attorney Fee. Section 1964(c) mandates the recovery of “threefold the damages” sustained as a result of a RICO violation; Stochastic was awarded $150,000 for the (trebled) fees expended in collecting the New Jersey judgment pursuant to this provision. Section 1964(c) also requires a RICO plaintiff to be awarded “the cost of the [RICO] suit, including a reasonable attorney’s fee.” As described supra, Stochastic claimed an attorney’s fee of $497,-477.24. The district court disallowed $80,000 for “unreasonably excessive litigation,” allocated $100,000 to Stochastic’s pursuit of its state law claims, and awarded a fee of $317,-477.24. Stochastic contends that the district court erred in disallowing $80,000 of its legal fees. Cross-Appellants maintain, on the other hand, that the district court “fail[ed] to recognize that ... it ... had discretion :.. to reduce the RICO fee award" }, { "docid": "21424266", "title": "", "text": "date. However, in this case, we hold that Bankers’ damages in this category are “unrecoverable”, at least at this time, because “their accrual is speculative” and “their amount and nature unprovable”. Zenith, 401 U.S. at 339, 91 S.Ct. at 806; Berkey Photo, 603 F.2d at 295. As discussed previously, Bankers’ RICO claim for injuries suffered as a result of its lost debt overlaps with the ongoing proceedings in the bankruptcy court. This is because (1) Bankers was injured by the identical transactions that injured the bankrupt corporation, and (2) should the corporation, through its trustee in bankruptcy, recover for its injury, Bankers’ injury will itself be reduced. For instance, should the bankruptcy trustee ultimately recover all the fraudulently transferred assets, Bankers’ injury could be significantly reduced; conversely should the assets never be recovered, or should the bankruptcy court order the claim abandoned, Bankers’ injury would be much more severe. Trebling and attorney’s fees aside, congress intended the basic award under civil RICO to compensate the plaintiff for injury to “his property or business.” 18 U.S.C. § 1964(c) (1984). As in other areas of the law, this compensation takes the form of awarding damages sufficient to place the plaintiff in the same financial position he would have occupied absent the illegal conduct. Illinois C.R. Co. v. Crail, 281 U.S. 57, 50 S.Ct. 180, 74 L.Ed. 699 (1930); United States Steel Products Co. v. Adams, 275 U.S. 388, 48 S.Ct. 162, 72 L.Ed. 320 (1928). Yet, at this time, it is impossible to determine the amount of damages that would be necessary to make plaintiff whole, because it is not known whether some or all of the fraudulently transferred funds will be recovered by the corporation. Should they be recovered, Bankers would benefit along with BAC’s other creditors and its injury would decrease. As a result, the damages in this area are “speculative” and “unprovable”, Zenith, 401 U.S. at 339, 91 S.Ct. at 806; any claim for relief based on the lost-debt injury must therefore be dismissed without prejudice. As we stated previously, refusal to award damages as too speculative is equivalent" }, { "docid": "22102935", "title": "", "text": "it will suffer, if any, are yet to be determined. B. The Ripeness of FNB’s RICO Injury The rule of fraud damages described above has been adopted by this court in the context of deciding whether a defrauded plaintiff has standing under RICO. A RICO plaintiff “only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985); see Hecht, 897 F.2d at 23. Furthermore, as a general rule, a cause of action does not accrue under RICO until the amount of damages becomes clear and definite. See Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1106 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). Thus, a plaintiff who claims that a debt is uncollectible because of the defendant’s conduct can only pursue the RICO treble damages remedy after his contractual rights to payment have been frustrated. See Stochastic Decisions, Inc. v. DiDomenico, 995 F.2d 1158, 1166 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993). For example, in Stochastic Decisions the plaintiff, a judgment creditor of a bankrupt company, brought a RICO action claiming that the company fraudulently conveyed assets to prevent the plaintiff from collecting on several judgments. We held that to the extent plaintiff successfully collected on the judgments, those amounts would reduce the RICO injury pro tanto, before any trebling occurred. Id. at 1165-66. Because plaintiffs collection efforts were ongoing and the actual amount of its injury was indefinite and unprovable, plaintiff did not yet have standing under RICO. Similarly, in Commercial Union Assurance Co. pic v. Milken, 17 F.3d 608 (2d Cir.1994), RICO plaintiffs argued that they were “entitled to a trebling of their damage award before any offset through settlements, restitution, recoupment or otherwise.\" Id. at 612. The plaintiffs maintained that they were fraudulently induced into investing approximately $10.5 million, none of which had been recouped when they initiated suit, and" }, { "docid": "13948623", "title": "", "text": "401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). In that ease, Zenith sued Hazeltine for Sherman and Clayton Act violations arising from Hazel-tine’s participation in Canadian, English, and Australian patent pools. Zenith sought future damages to its market share due to Hazeltine’s wrongful behavior. The Court applied the separate accrual rule to each of Zenith’s injuries, and noted that in most cases, future damages could be awarded. It also observed that “it is hornbook law, in antitrust actions as in others, that even if injury and a cause of action have accrued as of a certain date, future damages that might arise from the conduct sued on are unrecoverable if the fact of their accrual is speculative or their amount and nature unprovable.” Id. at 339, 91 S.Ct. at 806. The Court concluded that the cause of action for future lost profits would accrue as those damages were incurred: “In antitrust and treble-damages actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered.” Id. A line of cases in the Second Circuit has seized on this language and construed it broadly. In Bankers Trust, the Circuit held that a RICO plaintiffs cause of action had not yet accrued. At the time of the federal suit, the plaintiff was attempting to regain some of the defendant’s assets in an ongoing bankruptcy proceeding. The court noted that the plaintiff might recover all his damages in the ongoing bankruptcy proceeding, so that the amount of the plaintiffs damages was speculative. Relying on Zenith, it concluded that his RICO cause of action had not yet accrued. Bankers Trust, 859 F.2d at 1105-06. See also Stochastic Decisions, Inc. v. DiDomenico, 995 F.2d 1158, 1165 (2d Cir.), cert. denied, — U.S.-, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993) (holding that a RICO claim had not accrued for a plaintiff who, because he had not collected on judgments awarded in earlier state proceedings, did not know the amount of his damages); First Nationwide Bank v. Gelt Funding" }, { "docid": "5957070", "title": "", "text": ". Am. Cpt. ¶¶ 163(a)-(c), 178(a)-(c). The wording of paragraph 178 is slightly different than that of paragraph 163, but the Court can detect no meaningful difference in the substance of the allegations found in each paragraph. . 995 F.2d 1158 (2d Cir.), cert. denied, 510 U.S. 945, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993). . Id. at 1161-62. . Id. at 1163. . Id. . Id. . Because the court found the $50,000 to be \"RICO damages,” this amount was trebled, thus accounting for $150,000 of the total $467,477.24 award. See id. at 1164; see also 18 U.S.C. § 1964(c) (“Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor ... and shall recover threefold the damages he sustains .... ”). . See Stochastic, 995 F.2d at 1164. This amount was not trebled because it was not \"RICO damages,” but rather an award of statutory attorneys fees. See id. at 1164, 1167; see also 18 U.S.C. § 1964(c) (providing for recovery by RICO plaintiff of \"the cost of the [RICO] suit, including a reasonable attorney’s fee”). . See Stochastic, 995 F.2d at 1165. . Id. . 859 F.2d 1096 (2d Cir.1988), cert. denied sub nom. Soifer v. Bankers Trust Co., 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158. In Bankers Trust, the plaintiff, a creditor of the defendants, claimed that it had lost debt injury because (1) in 1976 it relied on defendants’ misrepresentations and accepted a bankruptcy reorganization plan that would have allowed it to recover only 17.5 percent of its allowed claim; (2) it lost the use of those funds from that time until the time of the lawsuit; and (3) funds which might have been used to pay the debt in 1981-82 were transferred fraudulently by the defendants. See id. at 1105-06. The court held that these damages were \"unrecoverable” because the fraudulently induced reorganization plan had been vacated and bankruptcy proceedings were pending. Id. at 1106. As it was impossible to determine how much of this lost debt plaintiff might recover in" }, { "docid": "23683888", "title": "", "text": "deficiencies in UHC’s fee application, it was not able to calculate a reasonable fee. Although the question of when to award attorney’s fees and costs in a RICO action has never before been squarely before us, we have had occasion in other circumstances to examine similar fee-shifting statutes. As we noted in these instances, we will generally not overturn a district court’s decision on attorney’s fees and costs absent an abuse of discretion. Walitalo v. Iacocca, 968 F.2d 741, 747 (8th Cir.1992). “If the district court has used improper standards or procedures in determining fees, however, we will reverse.” Id. UHC argues that the district court’s outright denial of attorney’s fees and costs conflicts with RICO’s statutory language and purpose, and therefore constitutes reversible error. We agree. Section 1964(c) provides that “[a]ny person injured in his business or property by reason of a violation of section 1962 ... shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” (emphasis added). This language indicates that an award of reasonable attorney’s fees and costs under RICO is mandatory, and several courts of appeals have so held. See, e.g., Stochastic Decisions, Inc. v. DiDomenico, 995 F.2d 1158, 1167 (2d Cir.), cert. denied, 510 U.S. 945, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993); Quick v. Peoples Bank of Cullman County, 993 F.2d 793, 799 (11th Cir.1993); FMC Corp. v. Varonos, 892 F.2d 1308, Í315 (7th Cir.1990). Indeed, the Supreme Court has implicitly acknowledged the maridatoiy nature of the fee award, stating in H.J., Inc. that “a person found in a private civil action to have violated RICO is liable for treble damages, costs, and attorney’s fees.” 492 U.S. at 233, 109 S.Ct. at 2897-98. Such an interpretation is consistent with Congress’ intent in enacting the civil portion of the RICO statute “to enlist the aid of civil claimants in deterring racketeering.” Alcorn County, Mississippi v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1165 (5th Cir.1984). Thus, by failing to award both fees and costs to UHC for its efforts in prosecuting this suit, the district court" }, { "docid": "23629440", "title": "", "text": "Bankers Trust, 859 F.2d at 1105. We accordingly reject Cross-Appellants’ contention that the district court improperly allowed the $50,000 legal fees expended by Stochastic in collecting the New Jersey judgments as (trebled) RICO damages. B. The Determination of Stochastic’s § 1964(c) Attorney Fee. Section 1964(c) mandates the recovery of “threefold the damages” sustained as a result of a RICO violation; Stochastic was awarded $150,000 for the (trebled) fees expended in collecting the New Jersey judgment pursuant to this provision. Section 1964(c) also requires a RICO plaintiff to be awarded “the cost of the [RICO] suit, including a reasonable attorney’s fee.” As described supra, Stochastic claimed an attorney’s fee of $497,-477.24. The district court disallowed $80,000 for “unreasonably excessive litigation,” allocated $100,000 to Stochastic’s pursuit of its state law claims, and awarded a fee of $317,-477.24. Stochastic contends that the district court erred in disallowing $80,000 of its legal fees. Cross-Appellants maintain, on the other hand, that the district court “fail[ed] to recognize that ... it ... had discretion :.. to reduce the RICO fee award more drastically.” The district court’s determination of the amount of attorney fees will be reversed only if the court abused its discretion. Pierce v. Underwood, 487 U.S. 552, 571, 108 S.Ct. 2541, 2553, 101 L.Ed.2d 490 (1988); Cassuto v. Commissioner, 936 F.2d 736, 740 (2d Cir.1991). Judge Weinstein presided over the twelve-day trial of this case and the related proceedings, and thus was in a superior position to determine the reasonableness of attorney fees. He explicitly disallowed those fees that he found to result from “unreasonably excessive” litigation, and granted only fees that were deemed an “entirely reasonable sum given the difficulty of this kind of litigation.” Furthermore, he appropriately determined the portion of Stochastic’s fees that was not related to the RICO claim, but rather was allocable to litigating the state law claims. See supra note 4. Stochastic’s argument consists of blanket assertions that these determinations “were not based on any evidence whatsoever,” and that it is entitled to “its full legal fees in this action.” These claims are insufficient to disturb the district" }, { "docid": "23629436", "title": "", "text": "withholding from retirement funds payable to a retired legislator of amounts equal to funds that he had embezzled by placing fictitious employees on the legislative payroll; the withholding was held not to bar a subsequent RICO award of treble damages (reduced by the prior withholding) in behalf of the state against the legislator. 600 F.Supp. at 1367. None of these cases involved, as did Bankers Trust, a RICO violation whose central purpose was to prevent the collection of a claim or judgment. Accordingly, they do not provide reliable guidance for the resolution of the “lost debt” issue presented by this appeal. Bankers Trust makes clear that such a RICO claim does not accrue until it is established that collection of the claim or judgment has been successfully frustrated. In other words, to the extent of a successful collection, the RICO claim is abated pro tan-to, prior to any application of trebling. 2. Attorney Fees as RICO Damages. Stochastic contends that Bankers Trust “makes it clear that plaintiff is ... entitled to recover as [trebled] RICO damages the ... legal fees which plaintiff incurred in obtaining the two New Jersey judgments.... [Bankers Trust, 859 F.2d at 1105.]” We disagree. Stochastic’s argument would be equivalent to a ruling in Bankers Trust that the attorney fees incurred by the bank during the debtor’s initial bankruptcy proceedings constituted RICO injury. However, Bankers Trust sought only past legal fees incurred in (1) fighting the debtor’s frivolous satellite lawsuits; (2) overcoming bribe-induced decisions in South Carolina; and (3) obtaining a revocation of the initial reorganization plan. 859 F.2d at 1105. We allowed recovery of such fees, to the extent not barred by the statute of limitations. Id. This ruling provides no basis to allow Stochastic to recover the legal fees initially expended in obtaining the New Jersey judgments. The asserted RICO violations in this case are defendants’ illegal actions in impeding Stochastic’s collection of those judgments. The Supreme Court has made it clear that a RICO injury must stem from and be proximately caused by a RICO violation. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S." }, { "docid": "1322225", "title": "", "text": "reports to be delivered by the United States Postal Service to the federal government to obtain financial aid funds from the federal government to be held in escrow and delivered to students as required by federal law with the fraudulent intent to use said funds for other obligations of St. Thomas University. (d) Father O’Neill has knowingly caused false financial reports to be delivered by the United States Postal Service to creditors and Trustees of St. Thomas University. 46. Plaintiffs, Father O’Malley and Nesbitt, were terminated as a direct result of the wrongful acts alleged in paragraph 17, and would not have been terminated but for the fact that they refused to participate in or continue to conceal those wrongful acts. Plaintiff[s] therefore have been injured in their business and property by the foregoing violations of 18 U.S.C. § 1962(c) and are therefore entitled to treble damages, attorneys’ fees, and costs pursuant to 18 U.S.C. § 1964. The district court dismissed the complaint for failure to state a claim, concluding, among other things, that the plaintiffs lacked standing to assert a RICO claim. The plaintiffs argue on appeal: (1) that they have standing to assert a RICO claim; and (2) that the district court improperly dismissed their claim because of their failure to “prove” their case in their RICO Case Statement. We affirm the district court’s dismissal for lack of standing, and therefore need not address plaintiffs’ second argument. The statute at issue, 18 U.S.C. § 1964(c) (1982), reads as follows: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee (emphasis added). Thus, in order to have standing to sue for damages under section 1964(c) the plaintiffs must show: (1) a violation of section 1962; (2) injury to business or property; and (3) that the violation caused the injury. See Haroco v. American Bank and Trust Co., 747 F.2d 384, 398" }, { "docid": "21424243", "title": "", "text": "defendants, and that the district court’s holding to the contrary was error. Second, Bankers contends that the district court erred in dismissing on statute of limitations grounds. We agree with both contentions. A. Bankers’ Standing to Bring a RICO Claim. Determining that formulation of an acceptable plan of reorganization “would be all but impossible if a creditor could employ RICO to recover misappropriated assets from the bankrupt’s corporate officers” during the pendency of the bankruptcy proceedings, the district court held that Bankers had no standing “to sue for any injury attributable to the depletion of BAC's corporate assets.” Such analysis correctly perceives a legitimate problem — if Bankers is allowed to bring its RICO claim (and collect treble damages plus costs and attorney’s fees), there may well be nothing left for the bankrupt’s estate to recover — but it uses the wrong mechanism to ensure that problem’s solution. The civil RICO statute, 18 U.S.C. § 1964(c) provides that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor * * * and shall recover threefold the damages he sustains * * (emphasis added). This language contains no special limitation on standing; all that is required is that plaintiff suffer injury in fact, see Sedima v. Imrex Co., 473 U.S. 479, 495, 105 S.Ct. 3275, 3284, 87 L.Ed.2d 346 (1985) (the only standing requirement under § 1964(c) is that the plaintiff be “injured in his business or property by the conduct constituting the violation”), and that the injury be caused by defendants’ RICO violation. Thus, as another panel of this court recently recognized: “A defendant who violates section 1962 is not liable for treble damages to everyone he might have injured by other conduct, but only to anyone whose injuries were caused by reason of a violation of section 1962.” Sperber v. Boesky, 849 F.2d 60, 64 (2d Cir.1988) (citation omitted). Significantly, this injury is not limited to damages suffered from the RICO violation as a whole, but also includes injuries suffered from each predicate act. Those acts are," }, { "docid": "9581729", "title": "", "text": "sufficient to demonstrate standing under RICO. Because plaintiffs have alleged predicate acts of fraud as the basis of their RICO complaint, they must plead injury and causation with particularity, as required by Fed.R.Civ.P. 9(b). See First Nationwide, 27 F.3d at 771. For the purposes of this discussion, the court will address the allegations of the creditor plaintiffs and. the Ashford and Dromoland plaintiffs separately. 1. Creditor Plaintiffs Defendants Dowling, Nickerson, Davison, ACI, DCI, Dowmar and AHL (the “Dowling defendants”) argue that the creditor plaintiffs have not alleged an injury cognizable under RICO. Dowling Mem. at 39-40. The court agrees, although for somewhat different reasons than those cited by the defendants. As the Second Circuit has repeatedly noted, a cause of action does not accrue under RICO until damages become clear and definite. First Nationwide, 2,1 F.3d at 768. For this reason, “a plaintiff who claims that a debt is uncollectible because of the defendant’s conduct can only pursue the RICO treble damages remedy after his contractual rights to payment have been frustrated.” Id. Based on a careful reading of the amended complaint, the court concludes that in this ease, the creditor plaintiffs have not adequately alleged such frustration of their contractual rights, and that their RICO claim is not yet ripe. In Bankers Trust v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 1643, 104 L.Ed.2d 158 (1989), the defendants sought to prevent the plaintiff from collecting a debt they owed to him by deceiving a bankruptcy court and bribing state court judges in South Carolina. The plaintiff then filed a RICO action while bankruptcy proceedings were still pending. The court held that a RICO cause of action does not accrue until a plaintiffs claim becomes clear and definite. Id. at 1106. It therefore found that the plaintiff could not maintain a RICO action for its lost debt, because there was still a possibility that it might be recovered in the bankruptcy proceeding. Prior to that time, the plaintiffs damages were unduly speculative. Similarly, in Stochastic Decisions v. DiDomenico, 995 F.2d 1158 (2d Cir.1992)," }, { "docid": "5957071", "title": "", "text": "RICO plaintiff of \"the cost of the [RICO] suit, including a reasonable attorney’s fee”). . See Stochastic, 995 F.2d at 1165. . Id. . 859 F.2d 1096 (2d Cir.1988), cert. denied sub nom. Soifer v. Bankers Trust Co., 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158. In Bankers Trust, the plaintiff, a creditor of the defendants, claimed that it had lost debt injury because (1) in 1976 it relied on defendants’ misrepresentations and accepted a bankruptcy reorganization plan that would have allowed it to recover only 17.5 percent of its allowed claim; (2) it lost the use of those funds from that time until the time of the lawsuit; and (3) funds which might have been used to pay the debt in 1981-82 were transferred fraudulently by the defendants. See id. at 1105-06. The court held that these damages were \"unrecoverable” because the fraudulently induced reorganization plan had been vacated and bankruptcy proceedings were pending. Id. at 1106. As it was impossible to determine how much of this lost debt plaintiff might recover in the bankruptcy proceeding, the court considered the lost debt damages \"speculative” and \"unprovable” at the time of the lawsuit. Id. The Stochastic court noted that Bankers Trust was the most persuasive authority in the circumstances because it involved \"a RICO violation whose central purpose was to prevent the collection of a claim or judgment.” Stochastic, 995 F.2d at 1166. Stochastic actually expanded the holding in Bankers Trust quite substantially because in Stochastic, as here, there was no pending bankruptcy proceeding. In fact, the plaintiff in Stochastic invoked Banlcers Trust to support its argument that its lost debt damages were recoverable because the only bankruptcy proceeding that had occurred was terminated without any payment to creditors. Stochastic, 995 F.2d at 1165. The panel rejected this argument. Id. . Stochastic, 995 F.2d at 1165. . Id. at 1166. . Id. at 1165-66; see also First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 768 (2d Cir.1994) (characterizing and reaffirming the Stochastic holding). . Berry Aff. ¶ 6. . Id. ¶ 7. . Plaintiffs' invocation of language" }, { "docid": "5957069", "title": "", "text": "injury was a proximate consequence of discrete predicate acts rather than some amorphous overarching pattern. See id. at 497, 105 S.Ct. 3292; Hon. Jed S. Rakoff & Howard W. Goldstein, Rico- Civil And Criminal Law And Strategy § 4.01 [1], at 4-2 (\"In the wake of Sedima, it is clear that civil RICO provides for recovery of damages to a plaintiff’s business or property caused by RICO predicate offenses.” (emphasis added (footnote omitted))); see also DeFalco, 244 F.3d at 329 (declining to decide whether \"a plaintiff may recover for injuries caused by the operation of a RICO enterprise, in addition to injuries caused by discrete unlawful predicate acts”). Beck v. Prupis, 529 U.S. 494, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000), lends support to the notion that it is injury flowing from predicate acts that counts for purposes of standing. See id. at 505, 507, 120 S.Ct. 1608 (holding, in RICO conspiracy context, that injury caused by an overt act in furtherance of conspiracy that is not a predicate act will not support RICO standing). . Am. Cpt. ¶¶ 163(a)-(c), 178(a)-(c). The wording of paragraph 178 is slightly different than that of paragraph 163, but the Court can detect no meaningful difference in the substance of the allegations found in each paragraph. . 995 F.2d 1158 (2d Cir.), cert. denied, 510 U.S. 945, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993). . Id. at 1161-62. . Id. at 1163. . Id. . Id. . Because the court found the $50,000 to be \"RICO damages,” this amount was trebled, thus accounting for $150,000 of the total $467,477.24 award. See id. at 1164; see also 18 U.S.C. § 1964(c) (“Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor ... and shall recover threefold the damages he sustains .... ”). . See Stochastic, 995 F.2d at 1164. This amount was not trebled because it was not \"RICO damages,” but rather an award of statutory attorneys fees. See id. at 1164, 1167; see also 18 U.S.C. § 1964(c) (providing for recovery by" }, { "docid": "23629430", "title": "", "text": "constituted RICO damages, and (b) by awarding an excessive attorney fee to Stochastic on its RICO claim; (2) New Jersey’s “entire controversy” doctrine bars Stochastic from asserting any of its claims in the instant action; and (3) Wagner was improperly held liable under the fraudulent conveyance and fraud counts for the amount of the Guarantee Case judgment. We proceed to the consideration of all these issues. A. RICO Damages. Section 1964(c) provides that: “Any person injured in his business or property by reason of a [RICO] violation ... shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” The district court determined that Stochastic was not entitled to the amounts owed on the Insurance Case or Guarantee Case judgments or the respective attorney fees in litigating those complaints as part of its RICO damages. The district court held, however, that the attorney fees expended in pursuing collection of the judgments constituted RICO damages and were subject to trebling. On appeal, Stochastic contends that the district court erred by not trebling the amount that remained uncollected on amounts owed to it by Cross-Appellants at the time it instituted this lawsuit, as well as the attorney fees expended in obtaining the New Jersey judgments and in postjudgment collection efforts. Cross-appellants contend that attorney fees were improperly considered RICO damages. 1. “Lost Debt” Damages. Stochastic premises its claim of entitlement to a trebling of the amount owed it by Cross-Appellants when it instituted this lawsuit principally upon our decision in Bankers Trust Co. v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). In that case, Bankers Trust had consented, as a creditor, to a debtor’s reorganization plan under which Bankers Trust received only 17.5% of its allowed claim. Id. at 1098. Neither the court nor the creditors, however, were aware that the debtor had fraudulently conveyed ownership of a corporation with net assets in excess of $3 million. Id. Bankers Trust subsequently claimed RICO injury for, inter alia, its “loss of legitimate debt ... when," }, { "docid": "9581730", "title": "", "text": "a careful reading of the amended complaint, the court concludes that in this ease, the creditor plaintiffs have not adequately alleged such frustration of their contractual rights, and that their RICO claim is not yet ripe. In Bankers Trust v. Rhoades, 859 F.2d 1096 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 1643, 104 L.Ed.2d 158 (1989), the defendants sought to prevent the plaintiff from collecting a debt they owed to him by deceiving a bankruptcy court and bribing state court judges in South Carolina. The plaintiff then filed a RICO action while bankruptcy proceedings were still pending. The court held that a RICO cause of action does not accrue until a plaintiffs claim becomes clear and definite. Id. at 1106. It therefore found that the plaintiff could not maintain a RICO action for its lost debt, because there was still a possibility that it might be recovered in the bankruptcy proceeding. Prior to that time, the plaintiffs damages were unduly speculative. Similarly, in Stochastic Decisions v. DiDomenico, 995 F.2d 1158 (2d Cir.1992), cert. denied, 510 U.S. 945, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993), the plaintiff filed a RICO action against a debtor over whom it had previously obtained two judgments in state court. After the RICO action was filed, the defendant paid one judgment, and the plaintiff had made no effort to collect on the second. Id. at 1162. Although the court awarded the plaintiffs treble damages for its attorney fees spent attempting to collect one judgment, it declined to award damages for the amount of the debts themselves. The Second Circuit upheld this decision, reasoning that one judgment had been paid, and that plaintiffs might still recover part of the second judgment, thereby reducing the RICO claim: Bankers Trust makes it clear that ... a RICO claim does not accrue until it is established that collection of the claim or judgment has been successfully frustrated. In other words, to the extent of a successful collection, the RICO claim is abated pro tanto, prior to any application of trebling. Id. at 1166. In this case, the" } ]

[ { "docid": "14837313", "title": "", "text": "OPINION and ORDER ALDRICH, Senior Circuit Judge. The single question in this appeal from the Secretary’s denial of death benefits to an alleged widow of an individual who was properly qualified under the Social Security Act at the time of his death, hereinafter “insured,” raises the single question whether applicant qualifies as a widow under the statute. Applicant and insured lived together for thirty-five years, purportedly as husband and wife, and it was generally believed that they were married. In fact, however, no ceremony had ever been performed. The relevant section, 42 U. S. C. § 416(h)(1)(A) provides, in material part, that an applicant shall be considered the widow “if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a . . . widow . . . of such insured individual.” (“such courts” being the courts of the local domicile). I can add nothing to the opinion of the hearing examiner, except to say that I have read his citations, including the decisions of the Supreme Court of Puerto Rico, and also the opinion determining this precise question adversely to the applicant by former Judge Cancio. Garcia Muriel v. Secretary, D.P.R. No. 301-68 decided 12/30/68, CCH U.I.R. Vol. 1A Fed. para. 15.368. Plaintiff advances no new arguments. It may be thought unfortunate, by some, that a woman who lives openly for a period of years as a wife is not to be treated, for Social Security purposes, as a widow. While the policy question is not for me to determine, I cannot refrain, however, in view of the earnestness of applicant’s brief, from saying that it is sometimes all too easy to claim to have been a “common law” wife, and if the local domicile chooses not to give full force to such a relationship, it is not unreasonable for Congress to go no further. Plaintiff’s request for oral argument is denied, the issue being simply one of law and have been fully briefed. Judgment is to be" } ]

[ { "docid": "11625842", "title": "", "text": "Sec. 2056 of the Internal Revenue Code of 1954, which provides an allowance of marital deduction on federal estate taxes imposed by 26 U.S.C. § 2001. The Arkansas Statutes, Annotated (1947) applicable to this issue provides— Sec. 61-201. Dower in lands.- — A widow shall be endowed of the third part of all the lands whereof her husband was seized, of an estate of inheritance, at any time during the marriage, unless the same shall have been relinquished in legal form. Sec. 60-501. When surviving spouse may elect to take against the will.— When a married man dies testate as to any part of his estate, or when a married woman dies leaving as her last will one executed prior to her marriage, the surviving spouse shall have the right to elect to take against the will and to take such part of the property as he or she would have taken had the deceased spouse died intestate. Sec. 62-701. Heir at law to assign dower. — It shall be the duty of the heir at law of any estate of which the widow is entitled to dower, to lay off and assign such dower as soon as practicable after the death of the husband of such widow. Sec. 62-704. Widow’s petition for allotment of dower — Contents—Notice. —If dower be not assigned to the widow within one [1] year after the death of her husband, or within three [3] months after demand made therefor, she may file in the court of probate, or in the clerk’s office thereof, in vacation, a written petition, in which a description of the lands in which she claims dower, the names of those having interest therein and the amount of such interest shall be briefly stated in ordinary language, with a prayer for the allotment of dower; and thereupon all persons interested in the property shall be summoned to appear and answer the petition on the first day of the next term of the court. Sec. 62-717. Sale of property-— Dower paid from proceeds. — In proceedings had in circuit [probate] court, for" }, { "docid": "8062281", "title": "", "text": "insurance benefits” on the ground that petitioner was not the wage earner’s widow. Petitioner then requested and obtained a hearing before a referee in the Office of the Appeals Council, Social Security Administration, Department of Health, Education and Welfare. On February 25, 1954 the referee issued his decision holding that petitioner was not entitled to the benefits for which she had applied. On May 26, 1954, the Appeals Council affirmed the referee’s decision. The controlling provisions of the Social Security Act are those contained in Sec. 216(h) (1), 42 U.S.C.A. § 416(h) (1), relating to the “Determination of Family Status”, which provides: “In determining whether an applicant is the wife, husband, widow, widower, child, or parent.of a fully insured or currently insured individual for purposes of this subchapter, the Administrator shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife, husband, widow, widower, child, or parent shall be deemed such.” Inasmuch ■ as the wage earner was domiciled in California at the time of his death, the issue of whether petitioner meets the Social Security Act definition of “widow” is to be decided by reference to the law which would be applied by the California courts “in determining the devolution of intestate personal property.” It is petitioner’s contention that under the law of the State of California she is the putative spouse of the deceased and that she is entitled to the same share of the intestate personal property of the deceased (property which in this • case was entirely acquired during the putative marriage) as a legal" }, { "docid": "8062285", "title": "", "text": "assuming that the Krone case is appropriately applicable to Section 216(h) (1), that petitioner does not meet the requirements of that section because a putative spouse does not take intestate personalty as a widow would, i. e., the same share, in all cases, as the putative widow may have no right to take separate property. The respondent then argues that claimant must take all types or kinds of property which decedent may ever possibly have, as a widow would. Suffice it to say, that in the instant case petitioner is entitled to all of the decedent’s personal property (property acquired during the marriage) as all of the property left by decedent has been given community property status by the California courts. It is true that in other factual situations not before the court at this time, certain problems may arise which will require legal determination. However, the court is of the view that these other questions do not affect the determination of the issue presented herein. In view of the fact that petitioner married decedent in good faith believing her marriage valid, that she lived with him for a period of eighteen years bearing him two children, that all the property of decedent is property of this marriage, and that California law has given the putative spouse the same rights in this property as a valid widow, It is hereby ordered that judgment be entered herein against the respondent reversing the decision heretofore entered in this case. The respective parties to pay their own costs. . The Statutory provisions for Federal old-age and survivor’s benefits are found in title II of the Social Security Act, Section 201 et seq., Title 42 U.S.C.A. § 401 et seq. . There is no question of the good faith of the parties in entering into this marriage. . By statute in California, Civil Code, § 85, the children of a void marriage are legitimate, notwithstanding the invalidity of the parents’ marriage." }, { "docid": "19722760", "title": "", "text": "to each other, the applicant is deemed to be the widow if the courts would accord her the same rights as if she were the widow in the devolution of intestate personal property. Section 216(h)(1)(B) of the Act, as amended, provides in pertinent part, that if applicant cannot qualify under Section 216(h)(1)(A) of the Act, as amended, she can qualify if she can establish that she and the deceased had a ceremonial marriage, that she married him in “good faith”, that the only impediment to a valid marriage was a legal impediment of which she was unaware, and they were living together in the same household at the time of his death. A woman who has been entitled under this provision shall have her benefits terminated effective with the month that the Secretary of Health, Education and Welfare certified payment to another woman who qualifies as the widow under Section 216(h)(1) of the Act, as amended. Section 404.344 of the Code of Federal Regulations, Chapter III of Title 20, provides in pertinent part, that to decide your relationship to the insured, we look first to state laws. If your relationship cannot be established under state law, you may still be eligible for benefits if your relationship as the insured’s widow is based upon a “deemed valid marriage” as described in the Act. Therefore, we must look to the laws of Puerto Rico to determine whether the courts of Puerto Rico will consider plaintiff to be the legal widow of the wager earner. Article 68 of the Civil Code of Puerto Rico states that marriage is a civil institution, originating in a civil contract, whereby a man and a woman mutually agree to become husband and wife and to discharge towards each other the duties imposed by law. It is valid only when contracted and solemnized in accordance with the provisions of law; and it may be dissolved before the death of either party only in the cases expressly provided for in this title. Article 69 of the Civil Code also provides that the requisites for the validity of a marriage" }, { "docid": "6309074", "title": "", "text": "argument, this court explored the possibility of allowing compound interest in a case of restitution. Compound interest may be awarded when provided by contract or by the law itself. L. Diez Picaso y Ponce de Leon, supra, vol. I, 481; J. Castan Tobenas, Derecho civil espanol, comun y foral, tome III, 65 (1962 ed.); Knights of Columbus Building Ass’n v. Arcilagos, 45 P.R.R. 89, 93 (1933). The contracts at issue here are silent on the matter, but the law of Puerto Rico is not. Article 1062 of the Civil Code, 31 L.P.R.A. 3026 (which embodies Article 1109 of the Civil Code of Spain) specifically refers to compound interest (“interest on interest”), stating: Interest due shall earn legal interest from the time it is judicially demanded, even if the obligations should have been silent on this point. This provision does not help Republic, however, for the Article does not provide compound interest as to a controverted claim (the amount of which must be established by judgment) prior to the making of that judgment. J. M. Manresa y Navarro, supra, tome VIII, 99 (1929 ed.). In this case, the claim was controverted and no definitive judgment was entered (due to reversal of the original case on this point in the Supreme Court of Puerto Rico) before the district court here reached its decision. Cf. Fairen Guillen, El momento de la produccion de la litispendencia segun la legislacion y la jurisprudencia actuales, 8 Revista General de Derecho 614, 621 (1952). In fact, Article 1062 hurts Republic, for the existence of that specific provision awarding compound interest in some circumstances and our inability to find any authority suggesting that the interest awarded under the restitution article, Article 1255, means compound interest, convinces us that we have no authority under the law of Puerto Rico to award its payment. Cf. Q. M. Scaevola, Codigo civil, tome XX, 1023-24 (2d ed. 1958). In sum, the equity argument that Republic advances is more appropriately dealt with by the executive or legislative branch of the government of Puerto Rico — rather than by this court. .. For these" }, { "docid": "12045399", "title": "", "text": "RONEY, Chief Judge: The sole issue on this appeal is what law of intestate devolution is to be used, as to whether Stephanie W. Hart would be entitled to inherit the personal property of Thomas W. Henderson as an illegitimate child, for the purpose of establishing Hart’s right to Social Security Survivor’s benefits pursuant to 42 U.S.C.A. § 402(d). The Secretary determined that Hart would not inherit under the Alabama intestacy scheme in effect in 1978 and denied benefits. The district court held this determination to be correct. We affirm. As an alleged illegitimate child of a fully insured deceased individual, Hart must prove that she could either (1) satisfy the applicable state law regarding a right to inherit by intestate devolution, or (2) that she was the child of a fully insured deceased individual and was dependent upon the deceased at the time of his death. Hart concedes that she was not dependent upon Henderson at the time of his death and therefore must qualify under the law of intestate devolution in order to prevail. The Secretary is required to “apply such law as would be applied in determining the devolution of intestate personal property ... by the courts of the State in which [the deceased] was domiciled at the time of his death.” 42 U.S.C.A. § 416(h)(2)(A). Thomas W. Henderson died in Alabama on October 10, 1978 and Hart, claiming to be his illegitimate daughter, filed her application on November 21, 1978. The Secretary denied the claim on April 18, 1979 on the ground that under the Alabama statute, then in effect, Hart would not qualify for inheritance of Henderson’s personal property. The Secretary’s determination that Hart does not qualify under the 1978 Alabama intestacy scheme is supported by substantial record evidence. Indeed, Hart admits in her brief that prior to 1982 it would have been almost impossible for her to inherit from her father under the then existing Alabama intestacy scheme. Under the Alabama Law of 1978, there were three means by which an illegitimate child could inherit from an intestate father, short of adoption by the" }, { "docid": "9328013", "title": "", "text": "the wage earner. 42 U.S.C. § 402(d)(3). If a child is illegitimate, he may nonetheless be deemed legitimate for purposes of the Act (and hence deemed dependent and thus entitled to benefits) if he can make one of four showings: 1) That the infant would be entitled to inherit personal property from the deceased wage earner under the law that would be applied in determining the devolution of intestate personal property by the courts of the wage earner’s state of domicile at death, 2) That the deceased wage earner and the other parent of the infant went through a marriage ceremony rendered invalid by some legal insufficiency, 3) That the deceased wage earner had a) acknowledged the infant claimant in writing as his or her son or daughter or b) been decreed by a court to be the claimant’s parent, or c) been ordered by a court to support the claimant on the basis of parenthood, 4) That the deceased wage earner was actually living with or contributing to the support of the infant claimant at the time of the wage earner’s death. Plaintiffs, all minor children born out of wedlock, contend that the Secretary erred as a matter of law in finding them ineligible for benefits. They argue first that current Maryland law should be applied to their cases and that under that law they are legitimate and therefore entitled to benefits due to the presumption of dependency found in 42 U.S.C. § 402(d)(3). See Massey v. Weinberger, 397 F.Supp. 817 (D.Md.1975). This contention is without merit. The choice of law rule applicable to child benefit cases is found in 42 U.S.C. § 416(h)(2)(A): In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled ... at the time of his death Regulations promulgated by the Secretary serve to further define what law applies in determining the" }, { "docid": "5490026", "title": "", "text": "she is to be so considered, her status as a child would also have to be viewed in the light of the provisions of § 416(h) (1), which is made expressly applicable in connection with the determination of the status of a child. Section 416(h) (1) makes such status dependent on the intestate succession laws of the state of domicile, and under the California (state of domicile here) law, the child 'of a decedent’s spouse by a former marriage, even though accepted into the home, if never legally adopted, has (with one possible exception, not here applicable), no inheritance rights in such decedent’s estate. Therefore, it is the opinion of the Court that the decision of the Social Security Administration denying “child’s insurance benefits” to Carolene A. Blystone must be affirmed. Both counsel have devoted the major portion of their efforts in this case to the question of petitioner’s status under § 416(h) (1). Preliminarily, it should be noted that on the basis of the factual record in this case, the Referee correctly concluded that petitioner was the “putative” spouse of Mr. Aubrey at the time of his death (see the requirements for such a relationship as they are set forth in Vallera v. Vallera, 21 Cal.2d 681, 134 P.2d 761). Section 416(h) (1) makes the applicable state intestate succession law determinative of the question of family status, and for the purposes of this case, as has already been noted, petitioner’s claim depends upon whether, under the California law of intestate succession, she, as a surviving “putative” spouse, would be treated in such a manner as a surviving legitimate spouse or widow of the deceased wage earner would be treated. It is respondent’s contention that the California courts recognize the putative spouse for equitable reasons only, and hence, grant her a share in the estate of the intestate putative spouse as a rule of equity and not as a rule of intestate succession. Since § 416(h) (1) refers to the state law of “devolution of intestate personal property”, and not the state law of equity, the Government argues, the putative" }, { "docid": "8062282", "title": "", "text": "courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife, husband, widow, widower, child, or parent shall be deemed such.” Inasmuch ■ as the wage earner was domiciled in California at the time of his death, the issue of whether petitioner meets the Social Security Act definition of “widow” is to be decided by reference to the law which would be applied by the California courts “in determining the devolution of intestate personal property.” It is petitioner’s contention that under the law of the State of California she is the putative spouse of the deceased and that she is entitled to the same share of the intestate personal property of the deceased (property which in this • case was entirely acquired during the putative marriage) as a legal spouse or widow and therefore, under Section 216 (h) (1) of the act, she has the same status with regard to the devolution of the intestate property as a widow of the deceased. The issue before this court is whether the claimant, under the law of California, would have the same status as a widow relative to taking the intestate personal property of decedent. When a marriage in California is invalidly entered into prior to entry of a final decree of divorce of a previous marriage of one of the spouses, the spouses being ignorant of the invalidity, and entering into the marriage in good faith and treating it as a valid one over a period of years, it is conceded by respondent that such marriage is treated as a putative marriage and property thereby accumulated is treated as if it were community property. Coats v. Coats, 160 Cal. 671, 118 P. 441, 36 L.R.A..N.S., 844; Schneider v. Schneider, 183 Cal. 335, 191 P. 533, 11 A.L.R. 1386; In re Estate of Krone, 83 Cal.App.2d" }, { "docid": "8825488", "title": "", "text": "usufruct and not in ownership; and that only the owners (“the heirs”) may exercise the survivorship cause of action, and that “[o]nce such cause of action bears fruit (if any), the heirs must respect the usufruct....” Id. at 7-8. Accordingly, they would have the Court believe that Mr. Martinez is “different, in terms of the indispensable-party analysis,” than the other heirs and is not an indispensable party to the federal litigation. Id. at 7. Having reviewed the arguments contained in both parties’ briefs, the Court rejects plaintiffs’ contentions. This Court has previously held that a widower is a forced heir: [pjursuant to Puerto Rico law, a widow[er] is an heir, because a surviving spouse is entitled to a hereditary portion of the deceased spouse’s estate called the “usufructo viudal.” Delgado v. Bowen, 651 F.Supp. 1320, 1322 (D.P.R.1987) (Fuste, J.); P.R. Laws Ann. tit. 31, §§ 2411-2416; see also Luce & Co. v. Cianchini, 76 P.R.R. 155, 162, 76 D.P.R. 165 (1954) (“[T]he widow[er]’s usufructuary quota is the legal portion ... which the law reserves for the surviving spouse, who is a forced heir.”); Moreda v. Rosselli 141 D.P.R. 674, 682, 1996 Juris P.R. 131 (1998) (“We have repeatedly held that the widow[er] spouse is a forced heir.”). Pino-Betancourt v. Hosp. Pavia Santurce, 928 F.Supp.2d 393, 396 n. 3 (D.P.R.2013) (Besosa, J.). That the widower’s quota is held in usufruct does not lead to the conclusion that his status as an heir is somehow secondary to other heirs. To the contrary, the Puerto Rico Supreme Court has ruled that a widower’s usufruct is a “legitimate share” in the intestate inheritance. Clavelo Petez v. Hernandez Garcia, 177 D.P.R. 822, 824 (2010); id. at 840 (finding that a remarried widower “is entitled to the usufructuary widower’s share.”). “[T]he Civil Code itself has established that the surviving spouse is a legitimate heir, granting him or her a right in the estate of the deceased.” Id. at 840. Moreover, the widower’s presence is required alongside all other heirs until all matters regarding the estate are resolved: “A surviving spouse ... must appear at the estate" }, { "docid": "2303713", "title": "", "text": "that an inheritance includes all property, rights, and obligations of a decedent and that heirs succeed the decedent in all of his or her rights upon the decedent’s death. Id. Laws of P.R. Ann. tit. 31 § 2090. An original victim’s right to claim for serious damages resulting from pain and suffering before his or her death “is a property privately owned, transmitted by his [or her] death to his [or her] heirs and claimable by the latter as a part which it is of their legal inheritance.” Id. Moreover, the heirs of a decedent have an “unquestionable juridical and economical interest” in an inherited cause of action. Id. The following year in Tropigas, the supreme court cited several commentators on the Spanish Civil Code to support its finding that any of a decedent’s heirs may exercise an action because it will benefit all the other heirs. 102 D.P.R. 630 (1974). One commentator wrote that when an inheritance remains undivided, each one of the heirs may “exercise the actions corresponding to the deceased, provided they result in benefit of the estate, and not in prejudice of the other co-heirs.” Tropigas, 102 D.P.R. 630 (citing VI-I Castan, Derecho Civil Español, Común y Foral, 1960 ed., p. 247). Another commentator wrote that an heir who exercises the right of the decedent does not acquire anything for himself or herself, but rather acquires damages in favor of the inheritance. Id. (citing XII Scaevola, Codigo Civil, Book III, Tit. Ill, 1950 ed., 55). While the commentators and the supreme court reasoned that each one of the heirs may exercise an action corresponding to the deceased so long as the action “result[s] in benefit of the estate, and not in prejudice of the other co-heirs,” id. (citing V Manresa, Comentarios al Codigo Civil Español, Book III, Tit. Ill, 1972 ed., 443), none specifically defined or described the meaning of “benefit” or “prejudice” in context. See id. 3. SUCESION ANALYSIS While the First Circuit Court of Appeals concluded that the state of the governing Puerto Rico law is “unsettled,” this Court prefers to characterize the law" }, { "docid": "5490027", "title": "", "text": "petitioner was the “putative” spouse of Mr. Aubrey at the time of his death (see the requirements for such a relationship as they are set forth in Vallera v. Vallera, 21 Cal.2d 681, 134 P.2d 761). Section 416(h) (1) makes the applicable state intestate succession law determinative of the question of family status, and for the purposes of this case, as has already been noted, petitioner’s claim depends upon whether, under the California law of intestate succession, she, as a surviving “putative” spouse, would be treated in such a manner as a surviving legitimate spouse or widow of the deceased wage earner would be treated. It is respondent’s contention that the California courts recognize the putative spouse for equitable reasons only, and hence, grant her a share in the estate of the intestate putative spouse as a rule of equity and not as a rule of intestate succession. Since § 416(h) (1) refers to the state law of “devolution of intestate personal property”, and not the state law of equity, the Government argues, the putative spouse does not have the status of a wife or widow within the meaning of § 416(h) (1). The Government further contends that even though the surviving putative spouse may be recognized as a “surviving legitimate spouse”, under the California law of intestate succession for some purposes, i. e., to the extent that the estate consists of “quasi-community property”, she has not yet been considered as having the same rights as a legitimate spouse with respect to the decedent’s separate property, and thus, under the California law, does not have the same status as a wife or widow, as such status is defined in § 416(h) (1). Under California Probate Code, § 201, a surviving spouse inherits all of the community property in the estate of the intestate spouse. This section has been expressly held to be applicable to a surviving putative spouse, thus giving the putative spouse a right of inheritance (as distinguished from an equitable right) in all of the “quasi-community property” in the estate of the intestate putative spouse (In re Estate" }, { "docid": "6309070", "title": "", "text": "the Civil Code of Puerto Rico specifically states, “[ujntil another rate is fixed by the Government, interest at the rate of six percent per annum shall be considered as legal.” 31 L.P.R.A. § 3025. And, the commentators, interpreting the restitution provision under which interest was awarded, namely Civil Code Article 1255, have reasoned persuasively that the interest payable under this Article is “to be established in accordance with the legal rate.” J. Ma. Manresa y Navarro, Comentarios al Codigo civil español, tome VIII, vol. 2, 870 (6th ed. 1967). The single exception which the Code arguably provides — when the parties have bargained for a different rate — Civil Code, Article 1649, 31 L.P.R.A. § 4591 does not apply here, for the contract is silent. Republic, noting “the unfairness” of an interest rate so much lower than what it might have earned on its money had it possessed it at the time, seeks to circumvent this language in several ways. First, it claims by analogy to the law of admiralty and certain other common law doctrines, that the interest rate under Article 1255 is left to the discretion of the trial court. See, e.g., United States v. The M/V Zoe Colocotroni, 602 F.2d 12, 13-14 (1st Cir. 1979). In interpreting the Civil Code of Puerto Rico, however, authoritative commentaries on analogous provisions of the Spanish Civil Code are more persuasive than common law analogies, which are inapplicable but for purposes of comparative analysis. See, e.g., Valle v. American International Insurance Co., 108 D.P.R. 692, 695 (1979); Gierbolini v. Employers Fire Insurance Co., 104 D.P.R. 853, 855 (1976); Lausell Marxuach v. Diaz de Yanez, 103 D.P.R. at 535. As just mentioned, the relevant commentary states that interest in a restitution case is to be fixed at the legal rate. Second, Republic argues that the government has effectively fixed “another rate.” It points to the higher rates of interest that the Commonwealth has established under Commonwealth Law No. 83 of July 3, 1980 and under 10 L.P.R.A. § 998 et seq. The first of these statutes, however, deals with the “Maximum interest" }, { "docid": "23382768", "title": "", "text": "the conjugal partnership which existed during their marriage and which was jointly liable with Marti nez for his debts. Article 1308 of the Civil Code of Puerto Rico provides that the debts and obligations incurred by either spouse during a marriage are chargeable to the conjugal partnership, which is an entity sui generis, separate and distinct from the individuals who compose it. 31 L.P.R.A. 3661. See generally, 31 L.P.R.A., Sections 3621, et seq.; Torres v. W.R.A., 96 P.R.R. 634 (1968); Rovira Tomas v. Secretary of the Treasury, 88 P.R.R. 168 (1963). Moreover, the Supreme Court of Puerto Rico has indicated that the conjugal partnership’s liability for the obligations incurred by one of its members — even obligations arising out of one member’s tortious actions, provided the conjugal partnership benefits economically from the action — is not merely several, but joint. See Lugo Montalvo v. González Mañón, 104 D.P.R. 372 (1975). Similarly, other civil law courts have made both the community and its members liable for the actions of one spouse whose actions are imputable to the conjugal community. See Audobon Insurance Co. v. Knoten, 325 So.2d 624 (La.Ct.App., 4 Cir., 1976); Valence v. State, 280 So.2d 651 (La.Ct.App., 10 Cir., 1973); Johnson v. Johness, 145 So.2d 588 (La.Ct.App., 1962); Vail v. Spampinato, 238 La. 259, 115 So.2d 343 (1959). Such holdings reflect the growing trend toward broadening joint obligations in civil legal systems. See, e. g., Compendio de Derecho Civil Español, Vol. 3, pp. 78-81 (1970); Sancho Rebullida, Estudios de Derecho Civil en Honor del Profesor Castán Tobeñas, Vol. 3, p. 571 (1969); Castán, Derecho Civil Español, Común y Foral, Vol. 3, p. 104 (1967). Since the law presumes that all the property of a marriage is considered as partnership property unless proven by strong, convincing evidence to belong exclusively to one spouse (31 L.P.R.A. 3647; Alum v. Registrar, 37 P.R.R. 753 (1928); Arroyo v. Vicario, 28 P.R.R. 753 (1920), all the partnership assets are subject to the debts and obligations of either spouse. Vivaldi v. Mariani, 10 P.R.R. 420 (1906). Accordingly, since there is no doubt that Martinez was" }, { "docid": "5490029", "title": "", "text": "of Krone, 83 Cal.App.2d 766, 769-770,189 P.2d 741, and Mazzenga v. Rosso, 87 Cal.App.2d 790,197 P.2d 770). In the case of Speed-ling v. Hobby, D.C.N.D.Cal., 132 F.Supp. 833, the Court held that under In re Estate of Krone, supra, a putative widow satisfied the requirements of § 416(h) (1) where the deceased wage earner left only “quasi-community” property in his estate. The Court expressly left open the question of whether the putative widow would qualify under the provisions of § 416(h) (1) where the deceased wage earner’s estate consisted of separate property as well (see: 132 F.Supp. at page 836). This Court has been unable to locate any reported California decisions which have either granted or denied inheritance rights in a decedent’s separate property to a surviving putative spouse. The Court does not agree with the respondent’s contention that the Speedling case, supra, is inapplicable where the deceased wage earner left separate property in his estate, for even if the surviving putative spouse is not granted inheritance rights in the decedent’s separate property under the California law, the surviving putative spouse may still satisfy the requirements of § 416(h) (1). To adopt the respondent’s interpretation of § 416(h) (1), the Court would have to read into that section the requirement that under the applicable state law of devolution of intestate personal property the petitioner would have to have the same status as a widow with respect to all classes of the deceased wage earner’s intestate property. In the opinion of the Court, such an interpretation is not required, for under the regulations it is sufficient that the applicant be treated as a widow (or other relative, as the case may be), although not technically endowed with that status, for the purpose of sharing in the deceased wage earner’s intestate personal property (Title 20 C.F.R. §§ 404.1101 and 404.1102), and this would imply that if the applicant is treated as standing in a family relationship necessary to qualify for benefits under the Act for any purpose under the state law of intestate succession, such applicant would qualify under § 416(h) (1)." }, { "docid": "14503025", "title": "", "text": "the foregoing, it is respectfully RECOMMENDED that Defendant’s Motion to Dismiss Or, in The Alternative, For Summary Judgment (Doc. 32) be GRANTED and that the Clerk be directed to enter judgment in favor of Defendant and close the file on this matter. Oct. 10, 2002. . U.S. v. Panzardi-Alvarez, 678 F.Supp. 353, 356 n. 4 (D.Puerto Rico 1988). See also Delgado v. Bowen, 651 F.Supp. 1320, 1321 (D.Puerto Rico 1987) (stating that \"the laws of Puerto Rico do not recognize common-law marriages,” and citing, Civil Code, 31 L.P.R.A. sec. 221). In Delgado, the Court also stated that although the law of Puerto Rico recognizes a concubine's right to a share of jointly-owned property, the law of Puerto Rico does not recognize a concubine as a \"spouse” for the purposes of the distribution of intestate personal property. Id. at 1321, 1322. . ACandS, Inc. v. Redd, 703 So.2d 492, 494 (3d DCA 1997). A spouse or child may recover for loss of support and services pursuant to Florida's Wrongful Death Act, but in this action, the Plaintiffs have abandoned their claims under the Wrongful Death Act. . Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 279 (Fla.1985). . RJ. & P.J. v. Humana of Florida, Inc., 652 So.2d 360, 364 (Fla.1995). . Specific written objections may be filed in accordance with 28 U.S.C. § 636, and Rule 6.02, Local Rules, M.D. Fla., within ten (10) days after service of this report and recommendation. Failure to file timely objections shall bar the party from a de novo determination by a district judge and from attacking factual findings on appeal. . This case was originally filed in the United States District Court for Puerto Rico on February 17, 2000 but was subsequently transferred to this Court pursuant to 28 U.S.C. § 1404. (See, Doc. 15.). . One of the children, Luis Fernando Ruiz Gonzalez, is not Mr. Ruiz's biological or adopted son. (Doc. 45, Ex. 4.) . Among others, Plaintiffs filed the affidavit of Luis Fernando Ruiz Gonzalez. (Doc. 45, Ex. 4.) . Plaintiffs also filed answers to interrogatories by Ms. Gonzalez" }, { "docid": "5490030", "title": "", "text": "California law, the surviving putative spouse may still satisfy the requirements of § 416(h) (1). To adopt the respondent’s interpretation of § 416(h) (1), the Court would have to read into that section the requirement that under the applicable state law of devolution of intestate personal property the petitioner would have to have the same status as a widow with respect to all classes of the deceased wage earner’s intestate property. In the opinion of the Court, such an interpretation is not required, for under the regulations it is sufficient that the applicant be treated as a widow (or other relative, as the case may be), although not technically endowed with that status, for the purpose of sharing in the deceased wage earner’s intestate personal property (Title 20 C.F.R. §§ 404.1101 and 404.1102), and this would imply that if the applicant is treated as standing in a family relationship necessary to qualify for benefits under the Act for any purpose under the state law of intestate succession, such applicant would qualify under § 416(h) (1). It is, therefore, the opinion of this Court that irrespective of the nature of the property in the estate of the deceased wage earner, the surviving “putative” spouse in California qualifies as a widow under the provisions of § 416(h) (1), and thus, in the case at bar, is entitled to “mother’s insurance benefits” under § 402(g). It is, therefore, ordered that petitioner’s motion for judgment on the pleadings and the entire present record, insofar as it relates to the eligibility of Irene E. Aubrey for “mother’s insurance benefits”, be, and it is, hereby granted; It is further ordered that respondent’s motion for summary judgment on the entire present record, insofar as it relates to the ineligibility of Carolene A. Bly-stone for “child’s insurance benefits”, be, and it is, hereby granted; It is further ordered that no relief, other than that hereinabove specifically provided for, be granted to either party by this order; And it is further ordered that the petitioner prepare and lodge with the Clerk of this Court all documents necessary for the" }, { "docid": "8062283", "title": "", "text": "spouse or widow and therefore, under Section 216 (h) (1) of the act, she has the same status with regard to the devolution of the intestate property as a widow of the deceased. The issue before this court is whether the claimant, under the law of California, would have the same status as a widow relative to taking the intestate personal property of decedent. When a marriage in California is invalidly entered into prior to entry of a final decree of divorce of a previous marriage of one of the spouses, the spouses being ignorant of the invalidity, and entering into the marriage in good faith and treating it as a valid one over a period of years, it is conceded by respondent that such marriage is treated as a putative marriage and property thereby accumulated is treated as if it were community property. Coats v. Coats, 160 Cal. 671, 118 P. 441, 36 L.R.A..N.S., 844; Schneider v. Schneider, 183 Cal. 335, 191 P. 533, 11 A.L.R. 1386; In re Estate of Krone, 83 Cal.App.2d 766, 189 P.2d 741. Under the rule of law enunciated in the Estate of Krone, supra, the claimant herein is entitled to take the same share which a lawful widow takes in any property which may have been acquired during the marriage by the spouses and to which the deceased died intestate. In the instant case since all of the property of decedent was acquired during his marriage to petitioner she is legally entitled to his entire estate: She therefore takes the same share that a legal widow would be entitled to take. The provisions of Section 216 (h) (1) have been set out above. A reading of this statute indicates that claimant does not have to be the lawful widow of the decedent, but rather must have the same status relative to taking intestate personal property as, a widow. Under the Krone doctrine,' claimant meets the standards of the statute, as under California law she is entitled to take the same share or “have the same status” as a lawful widow. The respondent argues," }, { "docid": "5490028", "title": "", "text": "spouse does not have the status of a wife or widow within the meaning of § 416(h) (1). The Government further contends that even though the surviving putative spouse may be recognized as a “surviving legitimate spouse”, under the California law of intestate succession for some purposes, i. e., to the extent that the estate consists of “quasi-community property”, she has not yet been considered as having the same rights as a legitimate spouse with respect to the decedent’s separate property, and thus, under the California law, does not have the same status as a wife or widow, as such status is defined in § 416(h) (1). Under California Probate Code, § 201, a surviving spouse inherits all of the community property in the estate of the intestate spouse. This section has been expressly held to be applicable to a surviving putative spouse, thus giving the putative spouse a right of inheritance (as distinguished from an equitable right) in all of the “quasi-community property” in the estate of the intestate putative spouse (In re Estate of Krone, 83 Cal.App.2d 766, 769-770,189 P.2d 741, and Mazzenga v. Rosso, 87 Cal.App.2d 790,197 P.2d 770). In the case of Speed-ling v. Hobby, D.C.N.D.Cal., 132 F.Supp. 833, the Court held that under In re Estate of Krone, supra, a putative widow satisfied the requirements of § 416(h) (1) where the deceased wage earner left only “quasi-community” property in his estate. The Court expressly left open the question of whether the putative widow would qualify under the provisions of § 416(h) (1) where the deceased wage earner’s estate consisted of separate property as well (see: 132 F.Supp. at page 836). This Court has been unable to locate any reported California decisions which have either granted or denied inheritance rights in a decedent’s separate property to a surviving putative spouse. The Court does not agree with the respondent’s contention that the Speedling case, supra, is inapplicable where the deceased wage earner left separate property in his estate, for even if the surviving putative spouse is not granted inheritance rights in the decedent’s separate property under the" }, { "docid": "23382769", "title": "", "text": "the conjugal community. See Audobon Insurance Co. v. Knoten, 325 So.2d 624 (La.Ct.App., 4 Cir., 1976); Valence v. State, 280 So.2d 651 (La.Ct.App., 10 Cir., 1973); Johnson v. Johness, 145 So.2d 588 (La.Ct.App., 1962); Vail v. Spampinato, 238 La. 259, 115 So.2d 343 (1959). Such holdings reflect the growing trend toward broadening joint obligations in civil legal systems. See, e. g., Compendio de Derecho Civil Español, Vol. 3, pp. 78-81 (1970); Sancho Rebullida, Estudios de Derecho Civil en Honor del Profesor Castán Tobeñas, Vol. 3, p. 571 (1969); Castán, Derecho Civil Español, Común y Foral, Vol. 3, p. 104 (1967). Since the law presumes that all the property of a marriage is considered as partnership property unless proven by strong, convincing evidence to belong exclusively to one spouse (31 L.P.R.A. 3647; Alum v. Registrar, 37 P.R.R. 753 (1928); Arroyo v. Vicario, 28 P.R.R. 753 (1920), all the partnership assets are subject to the debts and obligations of either spouse. Vivaldi v. Mariani, 10 P.R.R. 420 (1906). Accordingly, since there is no doubt that Martinez was married to Ms. Méndez during the period in which Martinez’ debts to Frito-Lay were incurred, the conjugal partnership and its property are liable to Frito-Lay, together with Martínez, and Frito-Lay is entitled to execute upon any such property. See Lugo Montalvo v. González Mañón, supra; National City Bank v. De La Torre, 54 P.R.R. 219 (1937); aff’d. 110 F.2d 976 (1 Cir., 1940), cert. den. 311 U.S. 666, 61 S.Ct. 24, 85 L.Ed. 428 (1940). WHEREFORE, in view of the foregoing, it is hereby ORDERED that Martinez’ Motion for Reconsideration, pursuant to Rule 59(e) F.R.C.P., is DENIED; and IT IS FURTHER ORDERED that Martinez’ Motion for Relief from judgment, pursuant to Rule 60(b)(3) F.R.C.P., is DENIED; and IT IS FURTHER ORDERED that Frito-Lay’s Cross-Motion for Amendment of Judgment, is GRANTED; and Frito-Lay is awarded prejudgment interest at the rate of 6% per annum, to be calculated from February 17, 1977, up to and including the date the Clerk of the Court enters an amended judgment on this Order, such interest to be calculated with respect" } ]

[ { "docid": "1118480", "title": "", "text": "38 C.F.R. § 3.303(a) (1993), which permits substantiation of claims through acceptable lay or medical evidence, and, more generally, all evidence of record. Furthermore, we find this provision unacceptable in light of our holdings that determinations of service connection, generally, are to be evaluated in light of all evidence of record, and not based solely upon an evaluation of medical or official military records. Zarycki v. Brown, 6 Vet.App. 91, 97 (1993); Triplette v. Principi, 4 Vet.App. 45, 49 (1993); Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991); cf. 38 C.F.R. § 3.203 (1993) (use of service records to establish “evidence of service”); Duro v. Derwinski, 2 Vet.App. 530, 532 (1992). In addition, we find this provision to be invalid under this Court’s subsequent holding in Fugere v. Derwinski, 1 Vet.App. 103 (1990). This Court held in Fugere that substantive rules in the M21-1 Manual have the force of regulation only where they have been adopted pursuant to the notice and comment procedure set out in the Administrative Procedure Act (APA), 5 U.S.C. § 552. Fugere, 1 Vet.App. at 107-10; see also Hayes v. Brown, 5 Vet.App. 60, 66-67 (1993); Hamilton v. Derwinski, 2 Vet.App. 671, 673-75 (1992). In Fugere, the Court invalidated an M21-1 provision regarding the awarding of benefits for hearing defects because the provision had not been adopted in accordance with the APA. Fugere, 1 Vet.App. at 107. The Court held: Paragraph 50.13(b) did not merely clarify or explain an existing rule or statute. It has “the force of law and narrowly limits administrative action” in that it prescribes what action must be taken in the initial levels of adjudication. Paragraph 50.13(b) regulates the awarding of benefits for hearing defects in a particular instance, i.e., when a change in benefits would result only from the implementation of a new rating schedule the old criteria must be applied. Paragraph 50.13(b) was more than a mere procedural guideline; it affected a substantive right and its placement in a procedural manual cannot disguise its true nature as a substantive rule. Id. Likewise, we find the instant provision of the M21-1" } ]

[ { "docid": "6869756", "title": "", "text": "Court. Indeed, substantive rules affecting rights can even be found in a “procedural” manual and, as the appellant correctly notes, this Court has found a number of substantive rules in the M21-1. See, e.g., Fugere, supra; Moreau v. Brown, 9 Vet.App. 389 (1996); Hayes v. Brown, 5 Vet.App. 60 (1993); Hamilton v. Derwinski, 2 Vet.App. 671 (1992) (en banc). In Fugere, we said: Paragraph 50.13(b) did not merely clarify or explain an existing rule or statute. It has “the force of law and narrowly limits administrative action” in that it prescribes what action must be taken in the initial levels of adjudication. Paragraph 50.13(b) regulates the awarding of benefits for hearing defects in a particular instance, i.e., when a change in benefits would result only from the implementation of a new rating schedule the old criteria must be applied. Paragraph 50.13(b) was more than a mere procedural guideline; it affected a substantive right and its placement in a procedural manual cannot disguise its true nature as a substantive rule. We hold that paragraph 50.13(b) fits well within the statutory (5 U.S.C. § 551(4)) and common law definitions of a substantive rule. Fugere, 1 Vet.App. at 107. We held further that, because the Manual M21-1 provision constituted a substantive rule, it could not be rescinded without affording APA due notice and an opportunity to be heard. Id. at 108; see generally Walters v. National Assoc. of Radiation Survivors, 473 U.S. 305, 333, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985); Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Accordingly, VA’s purported rescission of the manual provision was set aside. Fugere, however, involved a provision granting a substantive right because its application directly affected whether a veteran’s disability was to be retained or reduced. Here, the Manual M21-1 provisions and C & P policy on the development of claims relied upon by the appellant are purely interpretive. Together they constitute only “[a]n interpretative statement [which] simply indicates an agency’s reading of a statute or a rule ... [and does] not intend to create new rights or duties," }, { "docid": "23499895", "title": "", "text": "Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991) (“where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should ... apply unless Congress provided otherwise or permitted the Secretary ... to do otherwise and the Secretary did so”); Fugere v. Derwinski, 1 Vet.App. 103, 109 (1990) (without adherence to Administrative Procedure Act notice-and-comment process and specific notice to the public of intent to revoke Manual M21-1 provision protecting benefit entitlement, Secretary cannot revoke that provision); see also Austin v. Brown, 6 Vet.App. 547, 554-55 (1994) (discussing 38 C.F.R. § 1.551(e)’s prohibition against adversely affecting anyone by matter not published in Federal Register). This Court previously has held that the Manual M21-1 provisions in paragraph 7.46 dealing with PTSD are substantive rules that are “the equivalent of [VA][r]egulations”. Hayes, 5 Vet.App. at 67. The adoption of the specific PTSD C.F.R. regulation in May 1993 rendered moot the Manual M21-1 provisions regarding PTSD adjudications except where the Manual M21-1 is more favorable to the claimant. See Hayes, Austin, Kamas, and Fugere, all supra. Where the Manual M21-1 imposes requirements not in the regulation that are unfavorable to a claimant, those additional requirements may not be applied against the claimant. Ibid. They are not for further consideration and should not be used. Where the Manual M21-1 and the regulation overlap, the Manual M21-1 is irrelevant. In view of these principles, the Court generally will discuss the Manual M21-1 in this opinion only where it might be read as more favorable to the veteran. a. Current medical diagnosis: As to the first PTSD-service-connection element (a clear, current diagnosis of PTSD), at a minimum, a “clear diagnosis” should be an “unequivocal” one. The § 3.304(f) PTSD regulation neither specifies the criteria for “a clear diagnosis of PTSD” nor makes reference to the Diagnostic and Statistical Manual of Mental Disorders (DSM). When this ease began in 1989 and at the time of oral argument in this case, VA regulations in 38 C.F.R. § 4.125 (1989)" }, { "docid": "10278664", "title": "", "text": "MICHEL, Circuit Judge. The Secretary of Veterans Affairs appeals the decision of the Court of Veterans Appeals setting aside the Secretary’s recision of 1150.13(b) of the Veterans Administration (currently the Department of Veterans Affairs) (VA) Adjudication Procedure Manual, M21-1, as being unlawful. Fugere v. Derwinski, 1 Vet.App. 103 (1990). The Court of Veterans Appeals determined that the Secretary’s recision of 1150.13(b) violated both the provisions of the Administrative Procedure Act (APA) and the Secretary’s own regulations regarding notice and an opportunity to comment on rule changes. As a result, pursuant to 38 U.S.C. § 4061(a)(3)(D) (1988) redesignated as 38 U.S.C.A. § 7261(a)(3)(D) (West 1991), the Court of Veterans Appeals set aside the Secretary’s recision of 1150.13(b) as being “without observance of procedure required by law.” We affirm. BACKGROUND Oscar G. Fugere, a World War II veteran, received benefits for service connected bilateral defective hearing at a disability rating of twenty percent from November 1955 to July 1974. Fugere, 1 Vet.App. at 104. After July 1974, Fugere received benefits for his defective hearing at a disability rating of thirty percent. Id. On November 18, 1987, the VA established new criteria for rating defective hearing and published them in the Federal Register. Id. However, ¶ 50.13(b) of the VA Adjudication Procedure Manual instructed adjudi cators as follows: “If the decrease in evaluation is due to changed criteria or testing methods, rather than a change in disability, apply the old criteria and make no reduction [in the disability rating].” Id. On August 31, 1988, Fugere reopened his claim on the ground that additional hearing loss was found to exist during a VA hearing aid examination on August 25, 1988. Id. Fugere was retested for purposes of his claim ón November 8, 1988. Applying the new criteria, Fugere’s condition resulted in a ten percent disability rating. Id. at 104-05. However, the provisions of 1150.-13(b) would have preserved Fugere’s thirty percent rating. Id. In an opinion. dated October 27, 1988 (published on January 30, 1989), “the VA General Counsel opined that [¶ 50.13(b) ] ‘contravenes the [Secretary’s] statutory authority’ because it ‘establishes] dual rating schedules" }, { "docid": "18252866", "title": "", "text": "mention its lack of mooring in the statutory or regulatory language. By contrast, the DVA’s interpretation is a plausible construction of the statutory language and it is based on a simple but undisputed fact — that spraying was done on land, not over the water. Applying the substantial deference that is due to an agency’s interpretation of its own regulations, we uphold the DVA’s interpretation of section 3.307(a)(6)(iii). E Finally, the Veterans Court concluded that the pertinent provision of the DVA’s Manual M21-1, although styled as an interpretation of the law, was actually a substantive rule that could not be changed without compliance with formal notice-and-comment rulemaking procedures. Accordingly, the Veterans Court concluded that the 2002 change in Manual M21-1, in which the DVA made clear that “service in the Republic of Vietnam” would not apply to servicemembers who had not visited the landmass of Vietnam, was not valid because the change was not effected through notice-and-comment rulemaking. 20 Vet. App. at 277. On appeal, the government contends that the Manual M21-1 provisions are properly viewed as interpretive rules, and thus could be changed by the agency without formal rule-making procedures. Sections 4 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553, requires agencies to publish proposed rules in the Federal Register for notice and comment. Although that requirement does not apply by its terms to matters “relating to ... benefits,” 5 U.S.C. § 553(a)(2), the “benefits” exception does not apply to rules and regulations promulgated by the DVA, 38 U.S.C. § 501(d). The DVA’s rules relating to benefits are therefore subject to the notice and comment requirements of the APA. Importantly, however, those requirements do not apply to “interpretative rules, general statements of policy, or rules of agency organization, procedure or practice.” 5 U.S.C. § 553(b)(3)(A). Because interpretive rules are not substantive rules having the force and effect of law, they are not subject to the statutory notice-and-comment requirements. See Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995); Chrysler Corp. v. Brown, 441 U.S. 281, 301-02 & n. 31, 99" }, { "docid": "23499894", "title": "", "text": "BVA in 1991, the VA Adjudication Manual provisions then in effect required essentially the same three elements. See VA Adjudication PROCEdüRE Manual, M21-1 [hereinafter Manual M21-1], Subchapter (Subch.) XII, ¶ 50.45 (Jan. 25, 1989) (providing that service connection for PTSD requires diagnosis showing history of stressful events which are thought to have caused condition and description of past and present symptoms (including a description of “the relationship between past events and current symptoms” in terms of “a link between current symptoms and an in[-]service stressful event(s)”)); see also Manual M21-1, Part VI, ¶ 7.46 (Oct. 11,1995) (reiterating three PTSD service-connection requirements set forth in regulation § 3.304(f)). Hence, no question arises as to whether all three elements of a PTSD claim are required to be met in this case. As a general matter, the veteran is entitled to have his case adjudicated under whichever regulatory or Manual M21-1 provision would be more favorable to him in light of regulatory change (not specifically made prospective only) while his case was on appeal to the BVA See Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991) (“where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should ... apply unless Congress provided otherwise or permitted the Secretary ... to do otherwise and the Secretary did so”); Fugere v. Derwinski, 1 Vet.App. 103, 109 (1990) (without adherence to Administrative Procedure Act notice-and-comment process and specific notice to the public of intent to revoke Manual M21-1 provision protecting benefit entitlement, Secretary cannot revoke that provision); see also Austin v. Brown, 6 Vet.App. 547, 554-55 (1994) (discussing 38 C.F.R. § 1.551(e)’s prohibition against adversely affecting anyone by matter not published in Federal Register). This Court previously has held that the Manual M21-1 provisions in paragraph 7.46 dealing with PTSD are substantive rules that are “the equivalent of [VA][r]egulations”. Hayes, 5 Vet.App. at 67. The adoption of the specific PTSD C.F.R. regulation in May 1993 rendered moot the Manual M21-1 provisions regarding PTSD adjudications except where" }, { "docid": "18252867", "title": "", "text": "viewed as interpretive rules, and thus could be changed by the agency without formal rule-making procedures. Sections 4 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553, requires agencies to publish proposed rules in the Federal Register for notice and comment. Although that requirement does not apply by its terms to matters “relating to ... benefits,” 5 U.S.C. § 553(a)(2), the “benefits” exception does not apply to rules and regulations promulgated by the DVA, 38 U.S.C. § 501(d). The DVA’s rules relating to benefits are therefore subject to the notice and comment requirements of the APA. Importantly, however, those requirements do not apply to “interpretative rules, general statements of policy, or rules of agency organization, procedure or practice.” 5 U.S.C. § 553(b)(3)(A). Because interpretive rules are not substantive rules having the force and effect of law, they are not subject to the statutory notice-and-comment requirements. See Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995); Chrysler Corp. v. Brown, 441 U.S. 281, 301-02 & n. 31, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). While substantive rules are those that effect a change in existing law or policy or that affect individual rights and obligations, interpretive rules “clarify or explain existing law or regulation and are exempt from notice and comment under section 553(b)(A).” Paralyzed Veterans of Am. v. West, 138 F.3d 1434, 1436 (Fed.Cir.1998); see also Animal Legal Def. Fund v. Quigg, 932 F.2d 920, 927 (Fed.Cir.1991); Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045 (D.C.Cir.1987). An interpretive rule “merely ‘represents the agency’s reading of statutes and rules rather than an attempt to make new law or modify existing law.’ ” Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed.Cir.2001), quoting Splane v. West, 216 F.3d 1058, 1063 (Fed.Cir.2000). We conclude that the pertinent provision of Manual M21-1 is an interpretive statement, not a substantive rule. As the DVA has explained, Manual M21-1 “is an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those" }, { "docid": "3379951", "title": "", "text": "86-91 (1998) (en banc) (Kramer and Steinberg, J.J., concurring in part and dissenting in part).. . The panel in Morton v. West, 12 Vet.App. 477 at 481, 483-84 (1999) [hereinafter Morton at 481], characterizes the provisions at issue in Hamilton (Stanley) v. Derwinski, 2 Vet.App. 671, 675 (1992), and Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990), aff'd, 972 F.2d 331 (Fed.Cir.1992), as “[s]ubstantive rules, those which have the force of law and narrowly limit administrative action ... [and] are equivalent of Department regulations”, and holds that the Manual M21-1 duty-to-develop provisions are not substantive because they \"dictate how benefits will be awarded for specific disabilities and are based upon the Secretary's authority to define disabilities”, Morton at 483-84. The \"narrowly limit administrative action” language used in Fugere and Hamilton was taken, in Fugere, from Carter v. Cleland, 643 F.2d 1, 8 (D.C.Cir.1980), which derived the phrase from Guardian Federal Savings & Loan Ass'n v. FSLIC, 589 F.2d 658, 666-67 (D.C.Cir.1978). In Fugere, this Court stressed that the provision at issue \"regulates the awarding of benefits for hearing defects in a particular instance, i.e., when a change in benefits would result only from the implementation of a new rating schedule the old criteria must be applied”. That is, the provision clearly was mandatory and not a matter left to the adjudicator’s discretion. Similarly, the U.S. Court of Appeals for the D.C. Circuit in Guardian Federal used the phrase to draw a distinction between a rule that preserves substantial administrative discretion for the agency in question as contrasted with one that \"narrowly limits” it. Guardian Federal, 589 F.2d at 666-67. There is no hint in Guardian Federal that its holding that the regulation in question was not a substantive rule, governed by the advance-notice-and-public-comment requirements in the Administrative Procedure Act (APA), 5 U.S.C. § 553, was in any way affected by the fact that the FSLIC regulation required all, rather than only some, of the regulated savings institutions to be audited at least once annually in a manner satisfactory to the FSLIC \"in accordance with general policies from time to time" }, { "docid": "20413240", "title": "", "text": "enforceable right in the appellant. This Court has explained that “[rjules fall into two main categories: substantive or interpretive.” Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990). A substantive rule “has the force of law and narrowly limits administrative action.” Id., (citing Carter v. Cleland, 643 F.2d 1, 8 (D.C.Cir.1980) and Guardian Fed. Sav. & Loan Ass’n v. FSLIC, 589 F.2d 658, 666-67 (D.C.Cir.1978)). More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that when the Agency’s interpretation of a statute is clear from existing regulations, any discrepancy between M21-1 and the regulations “does not confer any rights” on a claimant. Haas v. Peake, 525 F.3d 1168, 1197 (Fed.Cir.2008). Over the years, VA has maintained that “[t]he M21-1 ... is a procedural manual for the use of field personnel and is not intended as a vehicle to notify claimants of their rights.” Fugere, 1 Vet.App. at 106. In Haas, supra, the Federal Circuit cited VA’s position that M21-1 “is an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation.” 525 F.3d at 1196. Nevertheless, in the course of judicial review, this Court makes its own assessment whether a particular M21-1 provision is substantive or interpretive. “ ‘The particular label placed upon [an M21-1 provision] by the [Agency] is not necessarily conclusive, for it is the substance of what the [Agency] has purported to do and has done which is decisive.’ ” Fugere, 1 Vet.App. at 107 (quoting Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942) (citations omitted.)). Thus, in particular instances, the Court has found that M21-1 provisions are substantive and limit the Agency’s actions. In Fugere, for instance, the Court nullified an attempt to change entitlement to benefits for hearing disability by rescinding an existing manual provision without resort to notice and comment procedures in the Administrative Procedure Act, 5 U.S.C. § 552. See also Hayes v. Brown, 5 Vet.App. 60, 67 (1993) (M21-1 provisions on PTSD, which preceded" }, { "docid": "6869757", "title": "", "text": "well within the statutory (5 U.S.C. § 551(4)) and common law definitions of a substantive rule. Fugere, 1 Vet.App. at 107. We held further that, because the Manual M21-1 provision constituted a substantive rule, it could not be rescinded without affording APA due notice and an opportunity to be heard. Id. at 108; see generally Walters v. National Assoc. of Radiation Survivors, 473 U.S. 305, 333, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985); Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Accordingly, VA’s purported rescission of the manual provision was set aside. Fugere, however, involved a provision granting a substantive right because its application directly affected whether a veteran’s disability was to be retained or reduced. Here, the Manual M21-1 provisions and C & P policy on the development of claims relied upon by the appellant are purely interpretive. Together they constitute only “[a]n interpretative statement [which] simply indicates an agency’s reading of a statute or a rule ... [and does] not intend to create new rights or duties, but only reminds affected parties of existing duties.” Paralyzed Veterans of America v. West, 138 F.3d 1434, 1436 (Fed.Cir.1998) (quoting Orengo Caraballo v. Reich, 11 F.3d 186, 195 (D.C.Cir.1993).) The Manual M21-1 provisions and C & P policy do not speak to whether a specific disability is to be granted or denied; nor do they impinge upon a benefit or right enjoyed by the veteran as in Fugere. There is no question that the provision at issue in Fugere was derived from the Secretary’s authority pursuant to statutory law. See 38 U.S.C. § 1155 (“The Secretary shall adopt and apply a schedule of ratings or reductions in earning capacities for specific injuries or combination of injuries.”). Indeed, while the Manual M21-1 provision at issue in Fugere derived from the Secretary’s statutory authority and responsibility to define disabilities and specify their degrees, the regulations, Manual M21-1 provision, and C & P policy relied upon by this appellant are, at most, administrative directions to the field containing guidance as to the procedures to be used in the" }, { "docid": "3379953", "title": "", "text": "established by the Board.” Id. at 661. See 5 U.S.C. § 553(b) (\"[e]xcept when notice or hearing is required by statute, this subsection [requiring ‘[g]eneral notice of proposed rule making’] does not apply (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”); see also 5 U.S.C. § 553(c) (\"[a]fter notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments”). Hence, neither the original source of the \"narrowly limits” test nor the Court's application of it in Fugere (or in Hamilton, for that matter) indicated that the measure of the substantive nature of a claims-adjudication rule adopted by VA is to be controlled by the number of persons or disabilities that its directives may encompass. . As to Fugere, the provision \"specifically provided the following direction to adjudicators: ' \"Changed Criteria. If the decrease in evaluation is due to changed criteria or testing methods, rather than a change in disability, apply the old criteria and make no reduction.” ' ” Fugere, 1 Vet.App. at 104 (quoting Manual M21-1, ¶ 50.13(b) (Nov. 18, 1987)). This was an unequivocal command. As to Hamilton, the Manual M21-1 required that if \" 'the evidence shows that veteran engaged in combat with the enemy and the claimed stres-sor is related to combat, [then] no further development for evidence of a stressor is necessary.’ ” Hamilton, 2 Vet.App. at 674 (quoting Manual M21-1, Part VI, ¶ 7.46e (Mar. 17, 1992)). This provision, too, was an unequivocal command. Indeed, this requirement to forgo further development and accept the asserted stressor flows directly from opinions of this Court, as we held in Cohen (Douglas) v. Brown, 10 Vet.App. 128, 145-46 (1997) (citing Zarycki v. Brown, 6 Vet.App. 91, 97 (1993)), in interpreting 38 U.S.C. § 1154(b) and the Manual M21-1 provision. . The entire text of the Manual M21-1 Foreword reads as follows: FOREWORD This manual provides procedures for the adjudication of claims for compensation, pension, dependency and indemnity compensation, accrued benefits and burial allowance." }, { "docid": "20413241", "title": "", "text": "It is not intended to establish substantive rules beyond those contained in statute and regulation.” 525 F.3d at 1196. Nevertheless, in the course of judicial review, this Court makes its own assessment whether a particular M21-1 provision is substantive or interpretive. “ ‘The particular label placed upon [an M21-1 provision] by the [Agency] is not necessarily conclusive, for it is the substance of what the [Agency] has purported to do and has done which is decisive.’ ” Fugere, 1 Vet.App. at 107 (quoting Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942) (citations omitted.)). Thus, in particular instances, the Court has found that M21-1 provisions are substantive and limit the Agency’s actions. In Fugere, for instance, the Court nullified an attempt to change entitlement to benefits for hearing disability by rescinding an existing manual provision without resort to notice and comment procedures in the Administrative Procedure Act, 5 U.S.C. § 552. See also Hayes v. Brown, 5 Vet.App. 60, 67 (1993) (M21-1 provisions on PTSD, which preceded formal regulations, were “the equivalent of [VA] [regulations”). None of these cases involved an M21-1 provision that purportedly created additional rights beyond those of preexisting regulations on the same subject. See Cohen v. Brown, 10 Vet.App. 128, 139 (1997) (“Where [M21-1 ] and the regulation overlap, [M21-1 ] is irrelevant.”). Here the Court holds that the M21-1 provision at issue does not establish or alter the criteria for benefits but only illuminates a suggested procedural practice for VA adjudicators. Therefore, the M21-1 provision does not limit Agency action. Our conclusion is reinforced by the fact that existing regulations defined the scope of the required notice of denial. Under these regulations, a reason for the denial was sufficient; the M21-1 manual provision did not create an additional enforceable right to notification by a formal rating decision. See Haas, 525 F.3d at 1197. Thus, even assuming that the M21-1 provision in question applied to the facts of this case, any failure to abide by the procedure set forth therein would not have prevented finality from attaching to" }, { "docid": "1118479", "title": "", "text": "providing information concerning the veteran’s participation in a radiation-risk activity_ [Requests for on-site participation, occupational force involvement or internment as a POW in Japan ... are to be sent to: Defense Nuclear Agency (DNA).... This information is NOT to be requested from any other source. Cases may already contain letters from the [DNA] ... which give sufficient factual data for a favorable decision by a rating board as to the veteran’s participation in a radiation-risk activity- If the letters are in response to a VA request, further development is not required. If the letters were submitted by the claimant, verification from DNA is required. Id. Part III, para. 5.11e(3)(a)-(b) (emphasis in original). Thus, under the M21-1 Manual, the only means by which a claimant’s assertion of radiation-risk activity may be substantiated, for presumptive service-connection purposes, is through official DNA documentation. Id. Other documentation is not acceptable unless verified by DNA documentation. Id. Assuming momentarily that this M21-1 provision was a valid exercise of regulatory authority, we find this M21-1 Manual provision a troubling departure from 38 C.F.R. § 3.303(a) (1993), which permits substantiation of claims through acceptable lay or medical evidence, and, more generally, all evidence of record. Furthermore, we find this provision unacceptable in light of our holdings that determinations of service connection, generally, are to be evaluated in light of all evidence of record, and not based solely upon an evaluation of medical or official military records. Zarycki v. Brown, 6 Vet.App. 91, 97 (1993); Triplette v. Principi, 4 Vet.App. 45, 49 (1993); Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991); cf. 38 C.F.R. § 3.203 (1993) (use of service records to establish “evidence of service”); Duro v. Derwinski, 2 Vet.App. 530, 532 (1992). In addition, we find this provision to be invalid under this Court’s subsequent holding in Fugere v. Derwinski, 1 Vet.App. 103 (1990). This Court held in Fugere that substantive rules in the M21-1 Manual have the force of regulation only where they have been adopted pursuant to the notice and comment procedure set out in the Administrative Procedure Act (APA), 5 U.S.C. § 552." }, { "docid": "6869755", "title": "", "text": "to a legal norm based on the agency’s own authority. That authority flows from a congressional delegation to promulgate substantive rules, to engage in supplementary lawmaking.”). The foreword to Manual M21-1 states: “[T]his manual provides procedures for the adjudication of claims for compensation, pension ...” It goes on to address the content of the different parts of the Manual which include the responsibilities of the staff, instructions for specific ratings, and explanations of procedures. In so doing, Manual M21-1 provides guidance to the administrative adjudicators who act under the direction of the authority of the Secretary. In large part, then, Manual M21-1 is filled with internal housekeeping matters. While the agency’s characterization of a rule is not binding, it can be “an important factor in determining whether a rule is interpretive” rather than substantive. Warder v. Shalala, 149 F.3d 73, 80 (1st Cir.1998). When the Secretary promulgates guidelines within the scope of his authority to implement legislation, he can intentionally (or perhaps even unintentionally) create substantive rights that must and will be enforced by the Court. Indeed, substantive rules affecting rights can even be found in a “procedural” manual and, as the appellant correctly notes, this Court has found a number of substantive rules in the M21-1. See, e.g., Fugere, supra; Moreau v. Brown, 9 Vet.App. 389 (1996); Hayes v. Brown, 5 Vet.App. 60 (1993); Hamilton v. Derwinski, 2 Vet.App. 671 (1992) (en banc). In Fugere, we said: Paragraph 50.13(b) did not merely clarify or explain an existing rule or statute. It has “the force of law and narrowly limits administrative action” in that it prescribes what action must be taken in the initial levels of adjudication. Paragraph 50.13(b) regulates the awarding of benefits for hearing defects in a particular instance, i.e., when a change in benefits would result only from the implementation of a new rating schedule the old criteria must be applied. Paragraph 50.13(b) was more than a mere procedural guideline; it affected a substantive right and its placement in a procedural manual cannot disguise its true nature as a substantive rule. We hold that paragraph 50.13(b) fits" }, { "docid": "18252875", "title": "", "text": "3.307(a)(6)(iii), the Secretary of Veterans Affairs specifically stated that the definition of \"service in the Republic of Vietnam” was taken from section 3.311 a, see 58 Fed.Reg. 50,528, 50,529 (Sept. 28, 1993), and the text of the two regulations is virtually identical (and significantly different from the text of section 3.313). . As we have noted, while not changing its legal position the DVA has recently acted to obviate this issue for the future by publishing a formal notice in the Federal Register rescinding the pertinent provision of Manual M21-1. See 73 Fed.Reg. 20,363 (Apr. 15, 2008). . Mr. Haas argues that Fugere v. Derwinski, 972 F.2d 331 (Fed.Cir. 1992), supports his argument regarding the amendment of Manual M21-1. In that case, however, the only issue before this court was whether a provision of the Manual conflicted with a statute. This court did not address whether the Manual provision in question constituted a substantive rule that could be amended only through notice-and-comment rulemaking. FOGEL, District Judge, dissenting. Although I agree with much of the majority’s thorough analysis of the relevant legislative and regulatory history, I respectfully disagree with its ultimate holding. Because I conclude that the VA’s refusal to apply the presumption of 38 U.S.C. § 1116(a) to Haas and others similarly situated is inconsistent with the intent of the statute and thus is based upon an unreasonable interpretation of the subject regulation, I would affirm the judgment of the Veterans Court. See Haas v. Nicholson, 20 Vet.App. 257 (2006). While judicial deference to the experience and expertise of administrative agencies is an important principle of our jurisprudence, the historical context in which both courts and agencies act also is important. The present case is the latest skirmish in a decades-long dispute between Vietnam-era veterans and the VA over the health effects of Agent Orange. In 1984, Congress enacted the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub.L. No. 98-542, 98 Stat. 2725 (1984) (“Dioxin Act”), the purpose of which was “to ensure that Veterans’ Administration disability compensation [was] provided to veterans who were exposed during service in the" }, { "docid": "3379930", "title": "", "text": "272, 282 (1999) (citing Cohen (Douglas) v. Brown, 10 Vet.App. 128, 138-39 (1997), Hayes v. Brown, 6 Vet.App. 66, 67 (1993), and Fugere v. Derwinski, 1 Vet.App. 103, 109 (1990), aff'd, 972 F.2d 331 (Fed.Cir.1992)), and that, therefore, by vir tue of the provisions in the Manual M21-1, Part III, ¶ 5.14c (8) and (9), “the RO is responsible for assisting the claimant in gathering, from sources in addition to in-service records, evidence corroborating an in-service stressor, by sending a special letter and questionnaire, by carefully evaluating that evidence including behavior changes, and by furnishing a clinical evaluation of behavior evidence”, Patton, supra. The Manual M21-1 provisions enforced by the Court there were not made contingent on the submission of a well-grounded claim. The Manual M21-1 duty-to-develop provisions at issue in Morton are written in very directory terms and are certainly no less substantive than those in Patton. If Hamilton (Stanley) v. Derwinski, 2 Vet.App. 671 (1992), which appears to be the first precedential opinion in which this Court held that the Manual M21-1 PTSD provisions were substantive rules that were binding on the BVA, and which the Morton opinion does discuss, and Hayes, Cohen (Douglas), and Patton, were wrongly decided, that is a matter for consideration by the full Court. Perhaps of greatest significance, the panel opinion fails to address a clear holding in this Court’s opinion in Sarmiento v. Brown, 7 Vet.App. 80 (1994), that appears to bear directly on the question before the Court. In Sarmiento, the Court sustained and enforced against the Secretary a mandatory regulatory duty that the Secretary had adopted in 38 C.F.R. § 3.203(3) (1998). The Court stated: “[T]he Secretary has taken upon himself an affirmative non-statutory duty to ‘request verification of service from the service department’ ” under certain circumstances on behalf of “one claiming entitlement [to Department of Veterans Affairs (VA) benefits who] fails to submit qualifying evidence of service” and who thus has not submitted a well-grounded claim. Sarmiento, 7 Vet.App. at 85. The inconsistency of the Court’s section 5107(a) analysis in Morton with its analysis in Sarmiento is illustrated" }, { "docid": "1110525", "title": "", "text": "argues that the Board erred by failing to apply a Veterans Benefits Administration (VBA) Circular, VBA CIRCULAR 21-91-1, Recently DISCOVERED Army Reoords (Jan. 14, 1991) [hereinafter “VBA CIRCULAR”]. This case does not involve a precedent opinion of the VA’s General Counsel (GC). 38 U.S.C. § 7104(c); 38 C.F.R. §§ 2.6(e)(9) (VA GC is authorized to designate which legal opinions are precedential for VA benefits purposes), 14.507 (VA GC’s written legal opinions are conclusive as to all VA officials and employees), 19.5 (VA GC’s precedent opinions are binding on BVA) (1993); Brooks v. Brown, 5 Vet.App. 484, 486 (1993). Rather, this case involves an illustrative example set forth in a VBA circular regarding the processing of claims on the basis of newly discovered service medical records. With regard to VA circulars and handbooks, the Court of Appeals for the Ninth Circuit has stated “ ‘that not all agency policy pronouncements which find their way to the public can be considered regulations enforceable in federal court.’ ” Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir.1982) (quoting Chasse v. Chosen, 595 F.2d 59, 62 (1st Cir.1979)). The Ninth Circuit further stated: In order for the Lenders Handbook and the VA circulars to have the “force and effect of law,” they must (1) prescribe substantive rules — not interpretive rules, general statements of policy or rules of agency organization, procedure or practice — and, (2) conform to certain procedural requirements. Chrysler Carp. v. Brown, 441 U.S. 281, 301[, 99 S.Ct. 1705, 1717, 60 L.Ed.2d 208] ... (1979). Rank, 677 F.2d at 698; see also Buzinski v. Brown, 6 Vet.App. 360, 368-69 (1994); cf. Suttmann v. Brown, 5 Vet.App. 127, 138 (1993) (“[T]he Board must ensure compliance with VA’s rules for adjudication of POW claims.”); Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990) (provision in VA adjudication manual was subject to APA’s requirement of publication in Federal Register and opportunity for comments where provision “was more than a mere procedural guideline; it affected a substantive right_”). But see 38 C.F.R. § 19.5 (“The Board is not bound by Department manuals, circulars, or similar administrative" }, { "docid": "18252874", "title": "", "text": "1116(a)(2), it is section 1116(a)(1), not section 1116(f), that governs his claim. Section 1116(1) was originally enacted as subsection (a)(3) of the first section of the Agent Orange Act, and it applied to diseases referred to in subsection (a)(1)(B). When the Act was amended in 2001, subsection (a)(3) became section 1116(f), and it was modified to apply to diseases other than those referred to in subsections (a)(1) or (a)(2). The legislative history of the 2001 amendment makes it quite plain that the new section 1116(f) was designed to make the Act applicable to new diseases, not to affect the preexisting scope of subsection (a)(1). S.Rep. No. 107-86, at 10-12 (2001). The erroneous reference makes no difference to the analysis in this case, however, as the pertinent phrase “served in the Republic of Vietnam” appears in both sections 1116(a)(1) and 1116(f). . Mr. Haas argues that the non-Hodgkin's lymphoma regulation, section 3.313, not the general dioxin exposure regulation, section 3.311 a, was the true predecessor to section 3.307(a)(6)(iii). That contention is plainly wrong. When proposing section 3.307(a)(6)(iii), the Secretary of Veterans Affairs specifically stated that the definition of \"service in the Republic of Vietnam” was taken from section 3.311 a, see 58 Fed.Reg. 50,528, 50,529 (Sept. 28, 1993), and the text of the two regulations is virtually identical (and significantly different from the text of section 3.313). . As we have noted, while not changing its legal position the DVA has recently acted to obviate this issue for the future by publishing a formal notice in the Federal Register rescinding the pertinent provision of Manual M21-1. See 73 Fed.Reg. 20,363 (Apr. 15, 2008). . Mr. Haas argues that Fugere v. Derwinski, 972 F.2d 331 (Fed.Cir. 1992), supports his argument regarding the amendment of Manual M21-1. In that case, however, the only issue before this court was whether a provision of the Manual conflicted with a statute. This court did not address whether the Manual provision in question constituted a substantive rule that could be amended only through notice-and-comment rulemaking. FOGEL, District Judge, dissenting. Although I agree with much of the majority’s" }, { "docid": "1118482", "title": "", "text": "Manual to be a substantive rule because it “has the force of law and narrowly limits administrative action.” Under paragraph 5.11, only certification obtained from or certified by the DNA may be accepted as proof of participation in a radiation-risk activity. In the context of a claim for presumptive service connection of a radiogenic disease, certification of participation in a radiation-risk activity is the factor which determines service connection. Paragraph 5.11 necessarily limits administrative action because it regulates the awarding of benefits in a particular instance: i.e., where a claimant seeks presumptive service connection for a radiogenic disease where that claimant participated, or claims to have participated, in a radiation-risk activity. Therefore, we find that paragraph 5.11c(3)(a)-(b) of the M21-1 Manual Part III is “more than a mere procedural guideline; it affect[s] a substantive right and its placement in a procedural manual ... [does not] disguise its true nature as a substantive rule.” Fugere, 1 Vet.App. at 107. Since paragraph 5.11 is a substantive rule, both the APA, 5 U.S.C. § 552, and this Court’s holding in Fugere, 1 Vet.App. at 107-10, require that it be adopted subject to the provision of notice in the Federal Register and an opportunity for public comment. However, the provision was not noticed and no opportunity for public comment was provided. It was therefore adopted “without observance of procedure required by law,” and will be held “unlawful and set aside.” 38 U.S.C. § 7261(a)(3)(D). This holding is consistent with this Court’s practice of invalidating, on a case-by-case basis, those substantive provisions of the M21-1 Manual, adverse to an appellant, which have not been adopted in accordance with the APA. Fugere, 1 Vet. App. at 110; see also 38 C.F.R. § 1.551(c) (1993) (person may not be “adversely affected by any matter required by this section to be published in the Federal RegisteR” that was not so published unless the person has “actual and timely notice” of its terms); see also Zarycki, 6 Vet.App. at 97-98 (requiring uniform application of M21-1 provisions favorable to claimant). The appellant expressly requested the VA to obtain the veteran’s" }, { "docid": "1125440", "title": "", "text": "so published unless the person has “actual and timely notice” of its terms); Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990) (notice and public comment required for substantive rules governing VA claims adjudication). Second, and closely related, VA has not adopted certain SSA regulations that would generally be beneficial to a claimant. See Collier v. Derwinski, 1 Vet.App. 413, 417 (1991); see also Masors, 2 Vet.App. at 187-88. The BVA has no authority to pick and choose from among SSA criteria which have never been made generally applicable to VA TDIU claims by regulations appropriately adopted by the Secretary. See Fugere, supra; cf. Bailey v. Derwinski, 1 Vet.App. 441, 448 (1991) (holding internally inconsistent BVA factfinding was reached in “arbitrary and capricious” manner in violation of 38 U.S.C. § 7261(a)(3)(A)). Here, the Board’s reliance on SSA provisions (provisions not adopted by VA) concerning sedentary forms of work does not provide a plausible basis for the Board’s denial of a TDIU rating. R. at 7; see 38 U.S.C. § 7104(c). Moreover, “[s]ubstantially gainful employment is ‘that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.’ ” Moore, supra (quoting VA Adjudication PROCEDURE Manual M21-1 [hereinafter “Manual”], pt. VI, para. 50.55(8) [now para. 7.55b(7) ]). This Court has determined that substantially gainful employment suggests “a living wage”. Ferraro, 1 Vet.App. at 332; see also Moore, supra; 38 C.F.R. § 4.16(a). In the present case, the Board, although briefly mentioning substantially gainful employment, failed to apply this Manual provision, which, as a substantive rule, must be followed and uniformly applied by VA in its claims adjudication process. See Fugere, supra; see also Doran v. Brown, 6 Vet.App. 283, 289 (1994); Zarycki v. Brown, 6 Vet.App. 91, 97 (1993). Here, the record showed that the veteran had an eighth-grade education, that he had been a farmer for the past thirty to forty years and that was the “only occupation” he knew, that he had been unemployed since 1989, and that he had made repeated, unsuccessful efforts to obtain" }, { "docid": "3379950", "title": "", "text": "Procedure Manual, M21-1 [hereinafter Manual M21-1], neither of which is set forth in the panel opinion at issue here. First, he relies on the following: Where medical causation is the issue, competent medical evidence to the effect that the claim is plausible or possible is required to make the claim well grounded. If a claim is potentially plausible on a factual basis, the regional office must initiate development. The duty to assist will prevail while development is undertaken. If after full development the claim is found to be well grounded, the merits of the claim must be reviewed. Manual M21-1, Part VI, ¶ 2.1 Of (emphasis added). Second, he relies on the following: VA is not required to carry to full adjudication a claim which is not well grounded. Before a decision is made about a claim being well grounded, it will be fully developed. Manual M21-1, Part III, ¶ 1.03a (emphasis added). . See Sarmiento v. Brown, 7 Vet.App. 80, 86-89 (1994) (Kramer, J., concurring); see also Laruan (Anchong) v. West, 11 Vet.App. 80, 86-91 (1998) (en banc) (Kramer and Steinberg, J.J., concurring in part and dissenting in part).. . The panel in Morton v. West, 12 Vet.App. 477 at 481, 483-84 (1999) [hereinafter Morton at 481], characterizes the provisions at issue in Hamilton (Stanley) v. Derwinski, 2 Vet.App. 671, 675 (1992), and Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990), aff'd, 972 F.2d 331 (Fed.Cir.1992), as “[s]ubstantive rules, those which have the force of law and narrowly limit administrative action ... [and] are equivalent of Department regulations”, and holds that the Manual M21-1 duty-to-develop provisions are not substantive because they \"dictate how benefits will be awarded for specific disabilities and are based upon the Secretary's authority to define disabilities”, Morton at 483-84. The \"narrowly limit administrative action” language used in Fugere and Hamilton was taken, in Fugere, from Carter v. Cleland, 643 F.2d 1, 8 (D.C.Cir.1980), which derived the phrase from Guardian Federal Savings & Loan Ass'n v. FSLIC, 589 F.2d 658, 666-67 (D.C.Cir.1978). In Fugere, this Court stressed that the provision at issue \"regulates the awarding of" } ]

[ { "docid": "4539979", "title": "", "text": "involved only contact with adults. After reviewing the evidence in the light most favorable to the verdict, Dwinells, 508 F.3d at 72, we conclude that the evidence was sufficient to sustain the conviction. “Section 2422(b) criminalizes an intentional attempt to achieve a mental state — a minor’s assent — regardless of the accused’s intentions vis-a-vis the actual consummation of sexual activities with the minor.” Dwinells, 508 F.3d at 71 (emphasis in original). The crime of “attempt” requires an intention to commit the substantive offense — here, critically, to “persuade, induce, entice and coerce” — and a substantial step towards its commission. United States v. Burgos, 254 F.3d 8, 12 (1st Cir.2001). A “ ‘substantial step’ is less than what is necessary to complete the substantive crime, but more than ‘mere preparation.’ ” United States v. Piesak, 521 F.3d 41, 44 (1st Cir.2008) (quoting United States v. Rodriguez, 215 F.3d 110, 116 (1st Cir.2000)); see also United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir.2007) (observing that a “ ‘substantial step’ ... crossfes] the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances” (internal quotation marks omitted)). Finally, a defendant can be convicted even if the relevant communications are with an intermediary. United States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir.2011); United States v. Douglas, 626 F.3d 161, 165 (2d Cir.2010), cert. denied, — U.S.-, 131 S.Ct. 1024, 178 L.Ed.2d 847 (2011); United States v. Nestor, 574 F.3d 159, 162 (3d Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 1537, 176 L.Ed.2d 133 (2010). Berk argues that the evidence supports no more than a finding that his internet communications with Ashley Dame “never went beyond mere preparation.” We disagree. The trial court could easily have found that the explicit communications with a person whom Berk thought was the father of a 12-year old girl about “renting her out,” along with the concomitant request to see what the girl thought of the idea, were part of an attempt to achieve the requisite mental state in the minor. Beyond that, we have" } ]

[ { "docid": "17709179", "title": "", "text": "such a result and “d[id] or omit[ted] to do anything with the purpose of causing or with the belief that it [would] cause such result without further conduct on his part.” Black’s Law Dictionary (6th ed.1990). Accordingly, courts commonly held that a defendant completed a “substantial step” sufficient to prove attempt when he utilized another person to perform an element of the crime with the clear intent to cause the harm proscribed by the statute. See, e.g., United States v. Rovetuso, 768 F.2d 809, 821-23 (7th Cir.1985) (attempted witness tampering proven where defendant solicited undercover agent to kill witness); United States v. Brown, 604 F.2d 347, 350 (5th Cir.1979) (attempted destruction of a building using fire or explosive proven where defendant reached agreement with undercover officer to provide bomb materials and sent other individuals to reconnoiter grocery store intended for destruction). In the context of § 2422(b), communications with an intermediary aimed at persuading, inducing, enticing, or coercing a minor to engage in sexual activity fit within this common understanding of “attempt.” See United States v. Lee, 603 F.3d 904, 915 (11th Cir.2010) (substantial step where defendant did not communicate directly with minors but rather “requested assistance from the one woman who had ‘influence and control over [the] daughters,’ ” their mother); Spurlock, 495 F.3d at 1014 (“Spurlock intended to entice minor girls to have sex with him, and ... his conversations with their purported mother were a substantial step toward that end.”). As the Seventh Circuit noted in McMillan, “[t]he essence of this crime is the defendant’s effect (or attempted effect) on the child’s mind. Nothing in the statute requires the minor to be the direct recipient of the defendant’s message, whether it comes in conversation, by telephone, by text, by email, or in some other way.” 744 F.3d at 1036 (emphasis added). The context and history of the statute, see Bailey, 516 U.S. at 146-47, 116 S.Ct. 501, supports this interpretation of § 2422(b). The purpose of § 2422(b) was to protect minors from sexual exploitation by online predators. The House Conference Report of the Telecommunications Act of" }, { "docid": "20037629", "title": "", "text": "or to attempt to persuade.”). Douglas is incorrect that the defendant’s speech must be directed to a minor in all cases in order for persuasion, inducement, enticement, or coercion to occur. As we noted in Brand, the statute criminalizes obtaining or attempting to obtain a minor’s assent to unlawful sexual activity. See Brand, 467 F.3d at 202. Such assent might be obtained, for example, by persuading a minor’s adult guardian to lead a child to participate in sexual activity. Accordingly, we join our sister circuits in holding that a defendant may commit criminal enticement pursuant to § 2422(b) by communicating with an adult guardian of a minor. See United States v. Nestor, 574 F.3d 159, 162 (3d Cir.2009); United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir.2007); Murrell, 368 F.3d at 1286-88. We agree with the Eleventh Circuit that “the efficacy of § 2422(b) would be eviscerated if a defendant could circumvent the statute simply by employing an intermediary to carry out his intended objective.” Murrell, 368 F.3d at 1287; see also Spurlock, 495 F.3d at 1014. Potential victims of enticement may be too young to use the Internet or otherwise communicate directly with strangers without their parents’ supervision. Criminals who target such children will perforce operate through intermediaries. If we were to agree with Douglas’s assumption that the statute sought to protect only those minors who are old enough to sign into a chat room, we would be ignoring Congress’ objective of protecting vulnerable children. We conclude that placing a sexual predator’s communications with an adult intermediary beyond the reach of the statute would be an illogical result. Accordingly, the district court did not err in holding that Douglas could commit criminal enticement pursuant to § 2422(b) by communicating with a person he believed to be the adult guardian of a minor. We have considered all of the parties’ arguments, and for the reasons stated herein and in the accompanying summary order, the judgment of the district court is AFFIRMED. . In an accompanying summary order, we address and reject Douglas's arguments that (1) his counsel below was" }, { "docid": "17709171", "title": "", "text": "requires direct communications with a minor and the use of a means of interstate commerce for the act of persuasion itself. Hite contends that each of the actus reus verbs in § 2422(b) describes an action directly performed by one person on another. He further claims that the statute’s legislative history is devoid of any mention of adult intermediaries, and that any statutory ambiguity must be resolved in his favor under the rule of lenity. Although it is a question of first impression for this Court, this is not the first time that a defendant has argued that § 2422(b) only applies to direct communications with a minor. Seven of our sister circuits have considered the issue and rejected a categorical requirement that the defendant communicate directly with a minor, rather than through an adult intermediary. United States v. McMillan, 744 F.3d 1033 (7th Cir.2014), cert. denied - U.S.-, 135 S.Ct. 292, - L.Ed.2d -(Oct. 6, 2014); United States v. Caudill, 709 F.3d 444 (5th Cir.2013), cert. denied, - U.S. -, 133 S.Ct. 2871, 186 L.Ed.2d 922 (2013); United States v. Berk, 652 F.3d 132 (1st Cir.2011); United States v. Douglas, 626 F.3d 161 (2d Cir.2010) (per curiam); United States v. Nestor, 574 F.3d 159 (3d Cir.2009); United States v. Spurlock, 495 F.3d 1011 (8th Cir.2007); United States v. Murrell, 368 F.3d 1283 (11th Cir.2004). Today, we join our sister circuits and hold that communications with an adult intermediary to persuade, induce, entice, or coerce a minor are punishable under § 2422(b), so long as the defendant’s interaction with the intermediary is aimed at transforming or overcoming the minor’s will in favor of engaging in illegal sexual activity. We review questions of statutory interpretation de novo. United States v. Wishnefsky, 7 F.3d 254, 256 (D.C.Cir. 1993). As always, we begin with the text of the statute. United States v. Rom Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); United States v. Barnes, 295 F.3d 1354, 1359 (D.C.Cir.2002). “It is elementary that the meaning of a statute must, in the first instance, be sought in" }, { "docid": "20037626", "title": "", "text": "18 U.S.C. § 2422(b) and one count of knowingly transporting child por nography in interstate commerce in violation of 18 U.S.C. § 2252A(a)(1). A superseding indictment asserting essentially the same charges was filed on September 25, 2008. Douglas was convicted, following a jury trial, on both counts. This appeal followed. Title 18, section 2422(b) of the United States Code provides: Whoever, using the mail or any facility or means of interstate or foreign commerce, ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life. Douglas argues that he could not commit enticement of a minor under § 2422(b) by communicating with a person he believed to be an adult. He asserts that the plain language of the statute indicates that a person must direct his or her communications to a minor in order to be considered to have persuaded, induced, enticed, or coerced a minor into unlawful sexual activity or to have attempted to do so. His argument rests on the fact that “the ‘minor’ is the only identified direct object of the active verbs listed” in § 2422(b). Def. Br. 52. We disagree. We review de novo this question of statutory interpretation. See, e.g., L-3 Commc’ns Corp. v. OSI Sys., Inc., 607 F.3d 24, 27 (2d Cir.2010). To obtain a conviction under § 2422(b), the government must show that the defendant “(i) used a facility of interstate commerce; (ii) to knowingly persuade, induce or entice, or to attempt to persuade, induce or entice; (iii) any individual who is younger than eighteen-years old; (iv) to engage in sexual activity of a criminal nature.” United States v. Brand, 467 F.3d 179, 201-02 (2d Cir.2006). We have emphasized that “[a] conviction under § 2422(b) requires a finding only of an attempt to entice or an intent to entice, and not an intent to perform" }, { "docid": "8605405", "title": "", "text": "a Minor or Attempted to Exploit Real Minors. On appeal, for the first time, Lee presents two arguments against his convictions under sections 2422(b) and 2251(a) and (e). First, he argues that he could not have violated either statute by communicating only with an adult intermediary, instead of actual or purported minors. Lee argues that the “plain language of the statute[s] covers persuasion, inducement, enticement and coercion of a minor, not an adult who controls the behavior of the minor.” According to Lee, if he did anything, he attempted to persuade only Candi, an adult, to provide access to her daughters and to produce child pornography. Second, he argues that he could not possibly have violated either statute because “there were no actual children in this case.” These arguments fail. Lee could have been convicted under section 2422(b) even though he communicated only with an adult intermediary. As Lee concedes, we have squarely rejected the argument that “because [the defen dant] did not directly communicate with a minor or a person he believed to be a minor, his conduct was not criminally proscribed by the language of § 2422(b).” United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir.2004); see also United States v. Searcy, 418 F.3d 1193, 1194 & n. 1 (11th Cir.2005); United States v. Hornaday, 392 F.3d 1306, 1309-10 (11th Cir.2004). In Murrell, we concluded that the conduct of a defendant who communicates only with an adult intermediary “fits squarely within the definition of ‘induce.’ ” 368 F.3d at 1287. We might also have explained that one can persuade, entice, or coerce a minor to engage in sexual activity through an adult intermediary because “[sjexual predators can and do ... attempt to persuade children to engage in sexual activity through the victim’s parents or guardians.” United States v. Nestor, 574 F.3d 159, 161-62 & n. 4 (3d Cir.2009); see also United States v. Spurlock, 495 F.3d 1011, 1013-14 (8th Cir.2007). No matter the rationale, section 2422(b) prohibits Lee’s conduct. The same is true of Lee’s conviction under section 2251(a) and (e). Sections 2422(b) and 2251(a) and (e)" }, { "docid": "22112778", "title": "", "text": "in a similar case in which another defendant chatted online with an undercover agent posing as the parent of a fictitious child. United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir.2004). In doing so we said that “[sjpeech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime.” Id. We have also held that a defendant can be convicted under § 2422(b) for attempted enticement through an adult intermediary, even if he never communicated directly with anyone he believed to be a child. United States v. Lee, 603 F.3d 904, 914-16 (11th Cir.2010) (defendant communicated with postal inspector posing as mother of twelve-year-old and seven-year-old girls); United States v. Murrell, 368 F.3d 1283, 1286-88 (11th Cir.2004) (defendant communicated with undercover detective posing as father of thirteen-year-old girl). As we said in Murrell, “the efficacy of § 2242(b) would be eviscerated if a defendant could circumvent the statute by employing an intermediary to carry out his intended objective.” Id. at 1287. On the adult intermediary issue, the facts in this case are materially indistinguishable from those in Homaday, Lee, and Murrell. B. Farley’s second contention is that it was legally impossible for him to commit the charged crimes because there was no actual child. This contention is, as he concedes, foreclosed by precedent. The primary precedent on point is United States v. Root, 296 F.3d 1222 (11th Cir. 2002). We held in Root that convictions for attempted enticement under 18 U.S.C. § 2422(b) and for travel in interstate commerce with intent to engage in a sexual act with a minor in violation of 18 U.S.C. § 2423(b) do not require the existence of an actual minor victim. Id. at 1227-32. Root engaged in sexually explicit chats and exchanged instant messages with a person he believed to be a thirteen-year-old girl in order to persuade her to meet him for sex, and then he traveled across state lines to have sex with her. Id. at 1224-26. It turned out that the girl was actually an adult police officer." }, { "docid": "17709172", "title": "", "text": "L.Ed.2d 922 (2013); United States v. Berk, 652 F.3d 132 (1st Cir.2011); United States v. Douglas, 626 F.3d 161 (2d Cir.2010) (per curiam); United States v. Nestor, 574 F.3d 159 (3d Cir.2009); United States v. Spurlock, 495 F.3d 1011 (8th Cir.2007); United States v. Murrell, 368 F.3d 1283 (11th Cir.2004). Today, we join our sister circuits and hold that communications with an adult intermediary to persuade, induce, entice, or coerce a minor are punishable under § 2422(b), so long as the defendant’s interaction with the intermediary is aimed at transforming or overcoming the minor’s will in favor of engaging in illegal sexual activity. We review questions of statutory interpretation de novo. United States v. Wishnefsky, 7 F.3d 254, 256 (D.C.Cir. 1993). As always, we begin with the text of the statute. United States v. Rom Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); United States v. Barnes, 295 F.3d 1354, 1359 (D.C.Cir.2002). “It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms.” Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917). The search for the meaning of the statute must also include an examination of the statute’s context and history. See Bailey v. United States, 516 U.S. 137, 144-45, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). With these principles in mind, we turn first to the statutory text, 18 U.S.C. § 2422(b), which provides that: Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or" }, { "docid": "12915781", "title": "", "text": "the jury might simply squint at all the evidence and conclude that, with so much bad conduct, “where there is smoke there must be fire.” Id. In this case, however, the operative statute does not require the commission of a particular number of prior crimes, such that precision is required to ensure that the Government has met its burden of proving that a defendant involved in a lot of shady dealings was actually guilty beyond a reasonable doubt of committing the requisite number of those crimes. In fact, § 2422(b) does not require that the defendant commit any prior crime at all nor that the defendant actually engage in any unlawful sexual activity with the minor. Instead, “§ 2422(b)’s underlying proscribed criminal conduct is the ‘persuasion, inducement, enticement, or coer cion of the minor rather than the sex act itself.’ ” United States v. Yost, 479 F.3d 815, 819 n.3 (11th Cir. 2007) (emphasis added) (quoting United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004)); see also United States v. Lee, 603 F.3d 904, 916 (11th Cir. 2010). Thus, “if a person persuaded a minor to engage in sexual conduct ... without then actually committing any sex act himself, he would nevertheless violate § 2422(b).” Murrell, 368 F.3d at 1286. In addition, the statute covers not just the actual persuasion of a minor to engage in sexual activity, but also an attempt to do so. A defendant is guilty of attempt when (1) he has a specific intent to engage in the criminal conduct for which he is charged and (2) he took a substantial step toward commission of the offense. Id. at 1286. Thus, a defendant charged with attempting to violate § 2422(b) can be found guilty upon proof that he attempted to persuade, entice, or induce a minor to engage in an unlawful sexual act. Id. Moreover, the existence of “an actual minor victim is not required for an attempt conviction under § 2422(b),” United States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir. 2011) (quoting United States v. Root, 296 F.3d 1222, 1227 (11th Cir." }, { "docid": "23668711", "title": "", "text": "solicitation and hence do not require a completed sexual act.”). Congress expressly included attempts in the prohibited conduct under § 2422(b). In fact, it amended the statute in 1998 to add the attempt language to it. See United States v. Root, 296 F.3d 1222, 1227 (11th Cir.2002). Because § 2422(b) is a federal statute, the interpretation of what “attempting” means under the statute is a matter of federal law. See Stein v. Paradigm Mirasol, LLC, 586 F.3d 849, 854 (11th Cir.2009) (“Because the Disclosure Act is a federal statute its interpretation is a matter of federal law, so we will use principles of statutory interpretation from federal decisions to construe the term ‘obligating.’ ”); see also Coley v. Gulf stream Aerospace Corp., 428 F.3d 1359, 1369 n. 9 (11th Cir.2005) (“The meaning of this statutory language in the FAA involves interpretation of a federal statute and thus is a question of federal law. We thus reject the plaintiffs’ argument that Georgia law governs this issue.”). Thus, if a defendant attempts to persuade a minor to engage in illicit sexual activity, but does not actually engage in a sex act, § 2422(b) has still been violated. See id.; Root, 296 F.3d at 1227 n. 10. Lanzon’s attempt to persuade a 14-year-old to engage in sexual activity plainly violates the federal statute. Second, “an actual minor victim is not required for an attempt conviction under § 2422(b).” Root, 296 F.3d at 1227. A defendant can be convicted under this section when he arranges to have sex with a minor or a supposed minor through communications with an adult intermediary. Murrell, 368 F.3d at 1286. In either circumstance, the government must show that he (1) “intended to cause assent on the part of the minor,” and (2) “took a substantial step toward causing assent, not toward causing actual sexual contact.” United States v. Lee, 603 F.3d 904, 914 (11th Cir.2010). Lanzon took a substantial step in attempting to violate § 2422(b). See Bist v. State, 35 So.3d 936, 941-42 (Fla. 5th DCA 2010). He conducted sexually explicit online conversations regarding a 14-year-old, and" }, { "docid": "23012594", "title": "", "text": "904, 913 (11th Cir.2010), in that both statutes “aim to criminalize the enticement of a minor to engage in sexual activity,” United States v. Searcy, 418 F.3d 1193, 1196-97 (11th Cir.2005). To obtain a conviction for enticement under § 2422(b), the government must prove that the defendant: (1) used a facility of interstate commerce; (2) to knowingly entice or attempt to entice any person under the age of 18; (3) to engage in illegal sexual activity. United States v. Douglas, 626 F.3d 161, 164 (2nd Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 1024, 178 L.Ed.2d 847 (2011). Section 2422(b) “does not require that the sexual contact occur, but that the defendant sought to persuade the minor to engage in that conduct.” United States v. Barlow, 568 F.8d 215, 219 n. 10 (5th Cir.2009). To obtain a conviction for sexual exploitation of a minor (enticement) under § 2251(a), the government must prove that: (1) the defendant knowingly enticed a person under the age of 18; (2) to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct; and (3) that either the defendant knew' or had reason to know that the visual depiction will be transported in interstate commerce, or that the visual depiction has actually been transported in interstate commerce. United States v. Malloy, 568 F.3d 166, 169 (4th Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 1736, 176 L.Ed.2d 212 (2010). Section 2251(a) “plainly makes illegal the inducement of children into sexual conduct for the purpose of creating visual depictions of that conduct and transportation of the depictions across state lines.” United States v. Bell, 5 F.3d 64, 68 (4th Cir.1993) (citation and internal quotation marks omitted). Sexual abuse of minors “can be accomplished by several means and is often carried out through a period of grooming.” United States v. Chambers, 642 F.3d 588, 593 (7th Cir.2011). “Grooming refers to deliberate actions taken by a defendant to expose a child to sexual material; the ultimate goal of grooming is the formation of an emotional connection with the child and a reduction of" }, { "docid": "22241857", "title": "", "text": "the clearly established law of the circuit that to prove an attempted exploitation offense under 18 U.S.C. § 2422(b), the Government does not have to prove the existence or identity of a specific minor victim; a fictitious minor will suffice so long as the defendant understood and believed that a minor was involved. United States v. Root, 296 F.3d 1222, 1227 (11th Cir.2002); Murrell, 368 F.3d at 1289; United States v. Lee, 603 F.3d 904, 913 (11th Cir.2010). The absence of a real minor victim is meaningless because the essence of the crime is the attempted enticement of someone the defendant believes to be a minor, not actual engagement in sexual activity with a minor. Murrell, 368 F.3d at 1286. Similarly, proof is not required that the defendant must have communicated directly with a minor, either real or fictitious; dealing with an adult intermediary for the purpose of attempting to entice a minor into sexual activity with the defendant or some third person is sufficient to constitute the offense. Lee, 603 F.3d at 913. That leaves, therefore, the question presented here as to whether a sexually solicitous communication by means of interstate commerce, without more, can ever constitute a substantial step toward commission of an offense in violation of 18 U.S.C. § 2422(b) so as to complete the crime of attempt. That very issue was recognized and left undecided in Murrell (see 368 F.3d at 1288 n. 3), but more recent decisions in our circuit have supplied an affirmative answer. Yost, 479 F.3d at 820, and Lee, 603 F.3d at 917. In Yost the defendant had engaged in internet chat room conversations of a sexually explicit and solicitous nature with an undercover agent posing as three separate minor females. With respect to one of the three fictitious minors, the extent of the defendant’s activity was limited to the chat room conversations; he had not traveled to a meeting or taken any other overt action, in addition to the conversations, to advance his predatory designs. 479 F.3d at 820. Citing United States v. Bailey, 228 F.3d 637, 639-640 (6th Cir.2000), and" }, { "docid": "8605406", "title": "", "text": "a minor, his conduct was not criminally proscribed by the language of § 2422(b).” United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir.2004); see also United States v. Searcy, 418 F.3d 1193, 1194 & n. 1 (11th Cir.2005); United States v. Hornaday, 392 F.3d 1306, 1309-10 (11th Cir.2004). In Murrell, we concluded that the conduct of a defendant who communicates only with an adult intermediary “fits squarely within the definition of ‘induce.’ ” 368 F.3d at 1287. We might also have explained that one can persuade, entice, or coerce a minor to engage in sexual activity through an adult intermediary because “[sjexual predators can and do ... attempt to persuade children to engage in sexual activity through the victim’s parents or guardians.” United States v. Nestor, 574 F.3d 159, 161-62 & n. 4 (3d Cir.2009); see also United States v. Spurlock, 495 F.3d 1011, 1013-14 (8th Cir.2007). No matter the rationale, section 2422(b) prohibits Lee’s conduct. The same is true of Lee’s conviction under section 2251(a) and (e). Sections 2422(b) and 2251(a) and (e) proscribe related conduct. Section 2422(b) proscribes attempting knowingly to “persuade[ ], induee[ ], entice[ ], or coerce[ ] [a minor] to engage in ... any sexual activity for which any person can be charged with a criminal offense.” 18 U.S.C. § 2422(b). Section 2251(a) and (e) prohibits the same conduct when the defendant’s object is to produce pornography with the minor rather than to engage in sexual activity with the minor. Id. § 2251(a), (e) (“Any person who ... persuades, induces, entices, or coerces any minor.... ”). In the light of this similarity, and the holding of Murrell, the district court did not err in applying section 2251(a) and (e) to Lee. Moreover, even without Murrell, the district court would have been right to apply section 2251(a) and (e) to an individual who, like Lee, attempted to produce child pornography by communicating with only an adult intermediary. Section 2251(a) and (e), unlike section 2422(b), prohibits attempting to “employ[] [or] use[]” a minor for the purpose of producing child pornography. Id. Lee’s argument against the application" }, { "docid": "23012593", "title": "", "text": "over a longer period of time. Engle cultivated an emotional attachment between them, and he ultimately traveled to South Carolina, picked up K.M., and returned with her to Virginia. KM. stayed with Engle for several weeks, and they had sexual relations during this time. Eventually, law enforcement arrested Engle, and he was charged with state-law crimes in Virginia and South Carolina. While he was incarcerated in Virginia pending trial, Engle communicated by mail and telephone with KM. and her mother, “C.M.,” in an effort to have them falsify evidence for him. Also while incarcerated, Engle had three communications (2 letters, one telephone call) with KM. in which he expressed his love for her and his desire to reunite with her. In these communications, he made multiple references to their past sexual experience and to his desire to resume their sexual contact upon his release. Based on these communications, Engle was indicted in Counts 6-8 for violating § 2422(b). Pertinent to this opinion, §§ 2422(b) and 2251(a) “proscribe related conduct,” United States v. Lee, 603 F.3d 904, 913 (11th Cir.2010), in that both statutes “aim to criminalize the enticement of a minor to engage in sexual activity,” United States v. Searcy, 418 F.3d 1193, 1196-97 (11th Cir.2005). To obtain a conviction for enticement under § 2422(b), the government must prove that the defendant: (1) used a facility of interstate commerce; (2) to knowingly entice or attempt to entice any person under the age of 18; (3) to engage in illegal sexual activity. United States v. Douglas, 626 F.3d 161, 164 (2nd Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 1024, 178 L.Ed.2d 847 (2011). Section 2422(b) “does not require that the sexual contact occur, but that the defendant sought to persuade the minor to engage in that conduct.” United States v. Barlow, 568 F.8d 215, 219 n. 10 (5th Cir.2009). To obtain a conviction for sexual exploitation of a minor (enticement) under § 2251(a), the government must prove that: (1) the defendant knowingly enticed a person under the age of 18; (2) to take part in sexually explicit conduct for the" }, { "docid": "12915782", "title": "", "text": "904, 916 (11th Cir. 2010). Thus, “if a person persuaded a minor to engage in sexual conduct ... without then actually committing any sex act himself, he would nevertheless violate § 2422(b).” Murrell, 368 F.3d at 1286. In addition, the statute covers not just the actual persuasion of a minor to engage in sexual activity, but also an attempt to do so. A defendant is guilty of attempt when (1) he has a specific intent to engage in the criminal conduct for which he is charged and (2) he took a substantial step toward commission of the offense. Id. at 1286. Thus, a defendant charged with attempting to violate § 2422(b) can be found guilty upon proof that he attempted to persuade, entice, or induce a minor to engage in an unlawful sexual act. Id. Moreover, the existence of “an actual minor victim is not required for an attempt conviction under § 2422(b),” United States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir. 2011) (quoting United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002)), so long as the defendant “intended to cause assent” on the part of a minor and “took a substantial step toward causing assent, not toward causing actual sexual contact.” Id. (citation omitted). The distinctions between the two statutes are important because Richardson was driven by a close textual analysis of § 848(c), which defines the term “continuing criminal enterprise.” In particular, the Supreme Court emphasized that it construed § 848(c) to require that the defendant have actually committed at least three previous violations of federal criminal drug law. Section 2422(b) articulates no comparable requirement. Instead, § 2422(b) requires that the defendant attempt to induce a minor to engage in sexual activity that would violate state or federal law. There is no dispute that Defendant arranged for a meeting with someone he thought to be a minor girl, and that he did so for the purpose of persuad- ing her to allow him to “make love” to her. The usual meaning most people would attribute to that phrase is probably “sexual intercourse.” But the phrase" }, { "docid": "20037628", "title": "", "text": "the sexual act following the persuasion.” Id. at 202; see also United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir.2004) (“The underlying criminal conduct that Congress expressly proscribed in passing § 2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself. That is, if a person persuaded a minor to engage in sexual conduct (e.g. with himself or a third party), without then actually committing any sex act himself, he would nevertheless violate § 2422(b).” (emphasis in original) (internal footnotes omitted)); United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) (“While it may be rare for there to be a separation between the intent to persuade and the follow-up intent to perform the act after persuasion, they are two clearly separate and different intents and the Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves. Hence, a conviction under the statute only requires a finding that the defendant had an intent to persuade or to attempt to persuade.”). Douglas is incorrect that the defendant’s speech must be directed to a minor in all cases in order for persuasion, inducement, enticement, or coercion to occur. As we noted in Brand, the statute criminalizes obtaining or attempting to obtain a minor’s assent to unlawful sexual activity. See Brand, 467 F.3d at 202. Such assent might be obtained, for example, by persuading a minor’s adult guardian to lead a child to participate in sexual activity. Accordingly, we join our sister circuits in holding that a defendant may commit criminal enticement pursuant to § 2422(b) by communicating with an adult guardian of a minor. See United States v. Nestor, 574 F.3d 159, 162 (3d Cir.2009); United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir.2007); Murrell, 368 F.3d at 1286-88. We agree with the Eleventh Circuit that “the efficacy of § 2422(b) would be eviscerated if a defendant could circumvent the statute simply by employing an intermediary to carry out his intended objective.” Murrell, 368 F.3d at 1287; see also Spurlock, 495" }, { "docid": "8605407", "title": "", "text": "proscribe related conduct. Section 2422(b) proscribes attempting knowingly to “persuade[ ], induee[ ], entice[ ], or coerce[ ] [a minor] to engage in ... any sexual activity for which any person can be charged with a criminal offense.” 18 U.S.C. § 2422(b). Section 2251(a) and (e) prohibits the same conduct when the defendant’s object is to produce pornography with the minor rather than to engage in sexual activity with the minor. Id. § 2251(a), (e) (“Any person who ... persuades, induces, entices, or coerces any minor.... ”). In the light of this similarity, and the holding of Murrell, the district court did not err in applying section 2251(a) and (e) to Lee. Moreover, even without Murrell, the district court would have been right to apply section 2251(a) and (e) to an individual who, like Lee, attempted to produce child pornography by communicating with only an adult intermediary. Section 2251(a) and (e), unlike section 2422(b), prohibits attempting to “employ[] [or] use[]” a minor for the purpose of producing child pornography. Id. Lee’s argument against the application of section 2422(b) to individuals who communicate only with an adult intermediary — that each of the verbs of section 2422(b) contemplates direct interaction with a minor aimed at oral persuasion— does not apply to section 2251(a) and (e). Lee also could have been convicted under section 2422(b) even though he attempted to exploit only fictitious minors. As Lee acknowledges, we have held that section 2422(b) does not require an actual minor victim. Yost, 479 F.3d at 819 n. 2; United States v. Root, 296 F.3d 1222, 1227 (11th Cir.2002); see also United States v. Pierson, 544 F.3d 933, 939 (8th Cir.2008). Adthough Root and Yost involved defendants who communicated with individuals who they believed to be, but were not, minors, Lee does not explain why his argument is stronger because he communicated only with the mother of two fictitious minors. Because of the material similarity of sections 2422(b) and 2251(a) and (e), Lee’s argument against his conviction under section 2251(a) and (e) for attempting to use a fictitious minor to produce pornography also fails." }, { "docid": "22241856", "title": "", "text": "he argues, that neither of the chats can be considered as a part of any pattern of illegal conduct triggering application of either U.S.S.G. § 2G2.2(b)(5) or USGG § 4B1.5(b)(l). More specifically, he asserts that mere talk or speech unaccompanied by some other form of overt conduct cannot constitute a substantial step necessary to an attempt to commit an offense; or, if speech alone can amount to an attempt, that the talk or speech involved in this case is factually insufficient to rise to that level. V. Discussion To establish an attempt as a crime, proof is required: (1) that the defendant intended to commit the underlying criminal offense with the requisite mens rea, and (2) that the defendant engaged in conduct which constituted a substantial step toward the commission of that crime and which strongly corroborates the defendant’s criminal intent. United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001); United States v. Yost, 479 F.3d 815, 819 (11th Cir.2007); United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir.2004). It is, however, the clearly established law of the circuit that to prove an attempted exploitation offense under 18 U.S.C. § 2422(b), the Government does not have to prove the existence or identity of a specific minor victim; a fictitious minor will suffice so long as the defendant understood and believed that a minor was involved. United States v. Root, 296 F.3d 1222, 1227 (11th Cir.2002); Murrell, 368 F.3d at 1289; United States v. Lee, 603 F.3d 904, 913 (11th Cir.2010). The absence of a real minor victim is meaningless because the essence of the crime is the attempted enticement of someone the defendant believes to be a minor, not actual engagement in sexual activity with a minor. Murrell, 368 F.3d at 1286. Similarly, proof is not required that the defendant must have communicated directly with a minor, either real or fictitious; dealing with an adult intermediary for the purpose of attempting to entice a minor into sexual activity with the defendant or some third person is sufficient to constitute the offense. Lee, 603 F.3d at 913. That" }, { "docid": "17709211", "title": "", "text": "minors falls within the statute's prohibition. Appellant Br. 12-13. This argument fails for two reasons. First, the use of the phrase “directly or indirectly” potentially sweeps in conduct far beyond that present in this case, cf. Jarvis v. U.S. Civil Serv. Comm’n., 382 F.2d 339, 344 (6th Cir.1967) (determining that Hatch Act prohibition on indirectly coercing state employees to make political donations \"forbids even advice”), and Hite provides no support for the argument that Congress generally uses this phrase when it wishes to include the use of an intermediary within the scope of the offense. Second, as discussed above, Hite was charged with using the Internet to attempt to entice a minor, and the legal definition of attempt at the time of the enactment of § 2422(b) contemplated the use of an intermediary. . Hite urges us to follow the dissent in United States v. Laureys, 653 F.3d 27 (D.C.Cir.2011). In Laureys, the Court did not address the question of statutory interpretation. However, the dissent examined the issue and concluded that \"§ 2422(b) requires an attempt to bend the child-victim’s will.” Id. at 40 (Brown, J., dissenting). We disagree with Hite’s construal of the dissent as opposing the statute’s application to all indirect communications. Properly read, the dissent in Laureys suggested that convictions under § 2422(b) may be permissible based on communications with intermediaries, if such communications are \"a vehicle through which the defendant attempted to obtain the child’s assent, or a substantial step toward persuasive communication with the child herself.” Id. (footnotes omitted); see also id. at 39 n. 2 (noting that \"there is no evidence Laureys attempted to entice the fictitious girl through his online communication with [the adult intermediary]”). . For an action to constitute a \"substantial step,” it must \"strongly corroborate[ ] the firmness , of defendant’s criminal attempt,” United States v. Farner, 251 F.3d 510, 513 (5th Cir.2001), such that \"a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute,” United States v. Dworken, 855 F.2d 12, 19-20 (1st" }, { "docid": "23668712", "title": "", "text": "engage in illicit sexual activity, but does not actually engage in a sex act, § 2422(b) has still been violated. See id.; Root, 296 F.3d at 1227 n. 10. Lanzon’s attempt to persuade a 14-year-old to engage in sexual activity plainly violates the federal statute. Second, “an actual minor victim is not required for an attempt conviction under § 2422(b).” Root, 296 F.3d at 1227. A defendant can be convicted under this section when he arranges to have sex with a minor or a supposed minor through communications with an adult intermediary. Murrell, 368 F.3d at 1286. In either circumstance, the government must show that he (1) “intended to cause assent on the part of the minor,” and (2) “took a substantial step toward causing assent, not toward causing actual sexual contact.” United States v. Lee, 603 F.3d 904, 914 (11th Cir.2010). Lanzon took a substantial step in attempting to violate § 2422(b). See Bist v. State, 35 So.3d 936, 941-42 (Fla. 5th DCA 2010). He conducted sexually explicit online conversations regarding a 14-year-old, and arranged to meet “Tom” and the 14-year-old to engage in sexual activity. See id. at 941. He drove several miles to the arranged meeting place, approached the undercover officers asking for “Tom,” and carried condoms and mint lubricant in his truck. See id. at 942. These actions “strongly corroborate” Lanzon’s culpability and support the jury’s verdict. See Root, 296 F.3d at 1228. Just as Root engaged in conduct that would have constituted a violation of O.C.G.A. §§ 16-6-3 (statutory rape) and 16-6-4 (child molestation) if he had actually completed his crime, see id. at 1227 n. 10, Lanzon engaged in conduct that would have constituted a violation of Fla. Sta. §§ 800.04(4)(a) if he had completed his crime. B. Lanzon next argues that the district court erred in denying his motion to suppress evidence seized from his truck. The district court’s denial of a motion to suppress evidence is a mixed question of law and fact. United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir.2007). We review rulings of law de novo. Id. Findings" }, { "docid": "11309868", "title": "", "text": "during his trip to the Philippines. The weight of this evidence prevents us from overturning Pavulak’s conviction for possessing child pornography. Likewise, we cannot say that “ ‘no reasonable juror could accept the evidence as sufficient’ ” to find Pavulak guilty of attempting to produce child pornography. Miller, 527 F.3d at 69 (quoting United States v. Lacy, 446 F.3d 448, 451 (3d Cir. 2006)). The crime of attempt requires the specific intent to commit a crime — here, producing child pornography in violation of 18 U.S.C. § 2251(a) — and a substantial step towards the commission of that crime. Cf. United States v. Nestor, 574 F.3d 159, 160-61 (3d Cir.2009) (describing attempted enticement of a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b)). Under § 2251(a), a person is guilty of producing child pornography if he “employs, uses, persuades, induces, entices, or coerces any minor to engage in” or “has a minor assist any other person to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct.” Here, Pavulak repeatedly insisted that Duran display Jane Doe’s vagina via a live webcam feed during their January 18, 2009 chat session. See JA530a-31a (telling Duran to “take ur panties off hon and show me ur pussy,” stating “no now ... and [Jane Doe’s] too ” when Duran initially declined, and again demanding “now [Jane Doe’s]” after Duran gave in to his request to see her vagina (emphasis added)). Duran declined to expose Jane Doe’s vagina because she was wearing a diaper but offered to display Jane Doe naked the next morning. Pavulak agreed, typing “ok.” That evidence was enough to constitute a substantial step towards “coercing” Jane Doe to “engage in any sexually explicit conduct ... for the purpose of transmitting a live visual depiction of such conduct.” 18 U.S.C. § 2251(a); see, e.g., United States v. Lee, 603 F.3d 904, 918 (11th Cir.2010) (upholding a guilty verdict for attempted production of child pornography where the" } ]

[ { "docid": "22608391", "title": "", "text": "must consider the severity of the penalty in deciding whether it is disproportionate. See, e. g., Coker, 433 U. S., at 598 (plurality opinion); Weems, 217 U. S., at 366-367. Second, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction. If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive. Thus in Enmund the Court noted that all of the other felony murderers on death row in Florida were more culpable than the petitioner there. 458 U. S., at 795-796. The Weems Court identified an impressive list of more serious crimes that were subject to less serious penalties. 217 U. S., at 380-381. Third, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdic tions. In Enmund the Court conducted an extensive review of capital punishment statutes and determined that “only about a third of American jurisdictions would ever permit a defendant [such as Enmund] to be sentenced to die.” 458 U. S., at 792. Even in those jurisdictions, however, the death penalty was almost never imposed under similar circumstances. Id., at 794-796. The Court’s review of foreign law also supported its conclusion. Id., at 796-797, n. 22. The analysis in Coker was essentially the same. 438 U. S., at 593-597. And in Weems the Court relied on the fact that, under federal law, a similar crime was punishable by only two years’ imprisonment and a fine. 217 U. S., at 380. Cf. Trop v. Dulles, 356 U. S. 86, 102-103 (1958) (plurality opinion). In sum, a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. B Application of these factors assumes that courts are competent to judge the gravity of an offense, at least" } ]

[ { "docid": "21767124", "title": "", "text": "case, however, for the record of trial leads us to the inescapable conclusion that the members knew exactly what they wanted to do and what they wanted to avoid in fashioning an appropriate punishment for this accused. They had been told as part of the sentencing instructions that a fine was a debt to the United States whereas forfeitures terminate upon discharge; they had been instructed that the accused was entitled to a pretrial credit of 78 days against any adjudged confinement; they knew that the amount of the fine could not exceed the maximum amount of forfeitures. With this information they fashioned a sentence which they assumed would result in the accused’s release from active duty and at the same time impose a meaningful monetary punishment — the only way they could accomplish the latter was by imposing a fine which would survive the accused’s anticipated discharge. In this case, we believe that the sentence to a fine was appropriate, especially in light of the military judge’s instructions, given without objection , which never mentioned the concept of unjust enrichment. Considering all of the above, our statutory direction under Article 66(c), UCMJ, and the advisory language in the Discussion following R.C.M. 1003(b)(3), we conclude the imposition of a fine was legal and appropriate. The findings and sentence are correct in law and that no error materially prejudicial to the substantial rights of the accused was committed. Accordingly, the findings of guilty and sentence, as approved on review below, are affirmed. Senior Judge RILEY and Judge MIELCZARSKI concur. . See also, United States v. Olson, 25 M.J. 293, 298 (C.M.A.1987). \"[U]njust enrichment is not a legal requirement for a fine....” . United States v. Cuen, 9 U.S.C.M.A. 332, 26 C.M.R. 112 (1958); United States v. Williams, 18 M.J. 186 (C.M.A.1984). . United States v. Huseby, No. 87-4256 (NMCMR 30 June 1988); United States v. Gilbert, No. 88-1250 (NMCMR 30 August 1988); United States v. Espineira, No. 88-1410 (NMCMR 7 September 1988). . See United States v. Czeck, 28 M.J. 563 (NMCMR 1989). . Cf. Czeck, supra (Coughlin, S.J., dissenting). ." }, { "docid": "343186", "title": "", "text": "which the objection was made. Accordingly, we find that the Mil.R.Evid. 403 objection was waived. ’ For the reasons discussed, appellant’s above stated assignment of error, including any error implicitly contained therein, is without merit. Next, appellant asserts that the military judge erred when he failed sua sponte to stop trial counsel’s improper argument referring to the operation of AR 735-11 and trial counsel’s material misrepresentation that a fine is an appropriate mechanism by which to reimburse the government for the ambulance destroyed by appellant. We are satisfied that a fine could be adjudged as part of an appropriate punishment in this case notwithstanding the absence of any evidence that appellant was unjustly enriched as a result of his crimes. R.C.M. 1003(b)(3); see United States v. Williams, 18 M.J. 186, 189 (C.M.A.1984); see also United States v. Parini, 12 M.J. 679, 684 (A.C.M.R.1981), petition denied, 13 M.J. 210 (C.M.A.1982) (no legal requirement that a crime involve the unjust enrichment of an accused before a fine can be legitimately imposed). At most, R.C.M. 1003(b)(3) discussion recites a judicial policy that a fine normally should not be adjudged against a service member unless he was unjustly enriched as a result of the offense of which he was convicted. In this regard, we are satisfied that the government’s legal obligation to protect military property, an obligation magnified in intensity by the unique and direct relationship which the maintenance of military property has to combat readiness, constitutes a legitimate military basis for departing from any general policy against the imposition of fines in cases involving the theft, destruction, damage or wrongful disposition of military property. Appellant also asserts that the sole apparent purpose of requesting judicial notice of AR 735-11 was to permit trial counsel to argue the limit of liability as a matter in aggravation of sentence. From the appellant’s perspective, this tactic provided the foundation for requesting the imposition of a fine as a means of restitution. Our view of trial counsel’s argument, however, reveals that other primary purposes for urging imposition of a fine were (a) as a means of punishing" }, { "docid": "12135423", "title": "", "text": "a fine is limited by a constitutional provision that excessive fines shall not be imposed. The question here is whether the fine of $15,000.00 is excessive and violative of the Eighth Amendment to the United States Constitution. In determining whether a fine authorized by statute is excessive in the constitutional sense, due regard must be given to the object designed to be accomplished. State v. Trailer Service, Inc., 61 Wis.2d 400, 212 N.W.2d 683 (1973), (fine imposed on commercial trucker who exceeded vehicular weight limitations is proper to the importance and magnitude of the public interest sought to be protected, and to the circumstances and the nature of the act for which it is imposed); State v. Staub, 182 La. 1040, 162 So. 766 (1935) (fine imposed for violation of state statute prohibiting lotteries and related activities is proper). In order to justify the court in interfering and setting aside a fine authorized by statute, the fine must be so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. State v. Smith, 58 N.J. 202, 276 A.2d 369 (1971) (suspension of driver’s license of individual convicted of marihuana use unrelated to driving did not constitute cruel or unusual punishment); State v. Naczas, 8 Wis.2d 187, 98 N.W.2d 444 (1959) (fine proportioned to weight of an overload on state highway rather than financial status of loader is not unconstitutional). Here, the maximum sentence which appellant could have received was 21 years in confinement, total forfeiture of all pay and allowances and dismissal. The conduct in which he engaged occurred on duty and was linked by him to his official acts. The conduct was reprehensible, and outrageous, and merits the amount of the fine imposed. The findings of guilty and sentence are affirmed. Judge MILLER and Judge LEWIS concur." }, { "docid": "3853905", "title": "", "text": "whom [Articles 120 and 125 were] principally designed”— those individuals who commit rape and forcible sodomy. Third, the eongressionally-prescribed maximum punishment authorized for rape under Article 120 is the most severe sentence known to the law: death. This penalty in no way “confirm[s] a minimum level of culpability,” and instead indicates that Congress and the President intended to punish these offenses severely. Appellant was sentenced to thirty years of confinement, the $75,000 fine, a dishonorable discharge, and reduction to E-l. Appellant’s sentence was significantly less than the maximum authorized for his offenses. Finally, as discussed above, the harm caused to MS by Appellant’s offenses is extremely severe. The Sentencing Guidelines for the federal civilian system are instructive to our proportionality review in this case. Under the United States Sentencing Guidelines, had Appellant been tried in the civilian system, his offense of criminal sexual abuse with a minor under the age of twelve at the time of the offense would have authorized a fine anywhere between $17,500 and $175,000. Comparing the gravity of the repeated rape and forcible sodomy of Appellant’s six-year-old daughter with the $75,000 fine, we conclude that the fine is in no way “grossly disproportionate to the gravity of his offense.” Therefore, based on the facts of this case, Appellant’s sentence did not violate the Excessive Fines Clause. C. Due Process Concerns In this case, we need not answer any Due Process concerns that may arise in other cases when fines are imposed on an accused as part of his sentence and contingent confinement is imposed for failure to pay. In United States v. Tuggle, we held, based on R.C.M. 113(d)(3), that the Due Process Clause is violated when confinement is imposed as a sanction for failure to pay a fine where the probationer has made good-faith efforts to pay but cannot because of indigen-cy and the court below denied the accused the opportunity to make a good-faith effort to pay. In this case, the convening authority did not approve the portion of the military judge’s sentence that provided for five years of contingent confinement for the failure" }, { "docid": "22537546", "title": "", "text": "the crime he committed; second, because the sentencing judge was statutorily required to impose it, without taking into account the particularized circumstances of the crime and of the criminal. I A The Eighth Amendment, which applies against the States by virtue of the Fourteenth Amendment, see Robinson v. California, 370 U. S. 660 (1962), provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Rummel v. Estelle, 445 U. S. 263 (1980), we held that it did not constitute “cruel and unusual punishment” to impose a life sentence, under a recidivist statute, upon a defendant who had been convicted, successively, of fraudulent use of a credit card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses. We said that “one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.” Id., at 274. We specifically rejected the proposition asserted by the dissent, id., at 295 (opinion of Powell, J.), that unconstitutional disproportionality could be established by weighing three factors: (1) gravity of the offense compared to severity of the penalty, (2) penalties imposed within the same jurisdiction for similar crimes, and (3) penalties imposed in other jurisdictions for the same offense. Id., at 281-282, and n. 27. A footnote in the opinion, however, said: “This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent, ... if a legislature made overtime parking a felony punishable by life imprisonment.” Id., at 274, n. 11. Two years later, in Hutto v. Davis, 454 U. S. 370 (1982), we similarly rejected an Eighth Amendment challenge to a prison term of 40 years and fine of $20,000 for possession and distribution of approximately nine ounces of marijuana. We thought that result so clear" }, { "docid": "3853901", "title": "", "text": "Amendment provides that “[e]xeessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In United States v. Bajakajian, the Supreme Court set out a two-pronged analysis for determining whether the Excessive Fines Clause is violated. First, a court must determine if the fine falls within the Excessive Fines Clause and, if so, whether the fine is excessive. In this case, Appellant claims that, although his crimes were serious, the $75,000 fine is not proportional to the offenses, especially considering the other punishments imposed on Appellant. We must first determine whether the $75,000 fine is a fine within the meaning of the Excessive Fines Clause. This first prong of the Excessive Fines Clause analysis is clearly met in this case. As the Supreme Court explained, “at the time the Constitution was adopted, ‘the word “fine” was understood to mean a payment to a sovereign as punishment for some offense.’ ” The $75,000 fine was directly imposed on Appellant as part of his sentence and was to be paid to the government as punishment for committing the offense. The next question is whether the $75,000 fine was excessive. “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” Therefore, if a fine is “grossly disproportionate to the gravity of a defendant’s offense,” it violates the Excessive Fines Clause. This proportionality analysis under the Excessive Fines Clause is conducted on a case-by-case basis and is distinguishable from the determination of sentence appropriateness required by Article 66. Although counseling against a strict proportionality between the amount of punitive forfeiture and the gravity of a criminal offense, because such judgment is better left to the legislature, the Supreme Court articulated various factors to be analyzed in determining whether a fine was grossly disproportionate. First, a court should look to the nature of the offense and then question whether it is related to any other illegal activities by the accused. Second, the court" }, { "docid": "12135421", "title": "", "text": "could not be applied to retired pay, it appears they chose a fine as the only available means of adjudging a financial penalty. This emerges as the sole choice to which appellant’s defense counsel wanted to limit the members. It was he, who for the obvious tactical reasons, requested the military judge to instruct the members that they could impose a fine. Having reaped the perpetual benefits of the requested instruction, appellant now asks us to declare the fine inappropriate. We are not so disposed. We determine a fine to be an appropriate punishment for the crimes committed during duty hours, against subordinates, and discrediting the office from which his active duty military pay and retired pay derive. In considering this issue we have waived the longstanding rule that a party may not ask for appellate review of an error in giving an instruction which he himself requested. Matheson v. United States, 227 U.S. 540, 33 S.Ct. 355, 57 L.Ed. 631 (1912); United States v. Wiggins, 530 F.2d 1018 (D.C.Cir.1976). V Appellant asserts the unlimited power of a general court-martial to impose a fine violates the Fifth Amendment prohibition against deprivation of property without due process of law and constitutes cruel and unusual punishment in violation of Article 55, UCMJ, 10 U.S.C. § 855. We do not agree. Pursuant to Article 56, UCMJ, 10 U.S.C. § 856, the President of the United States has placed limits on the. amount of fine which may be adjudged by a special and summary court-martial, but he has set no maximum limit on the amount of fine which a general court-martial may impose. See paragraph 126h(3), MCM 1969 (Rev). A sentencing statute is not unconstitutional because it does not provide a maximum sentence. Earin v. Beto, 453 F.2d 376 (5th Cir. 1972), cert. denied 406 U.S. 909, 92 S.Ct. 1618, 31 L.Ed.2d 819 (1972) and the failure of a statute to fix a maximum fine does not render it unconstitutional. Singletary v. Wilson, 3 S.E.2d 802, 191 S.C. 153 (1939). When the legislative body has not imposed a maximum penalty, the power to impose" }, { "docid": "3853900", "title": "", "text": "the power to adjudge fines instead of forfeitures in all cases in which the article of the Uniform Code violated by the accused authorizes punishment as a court-martial may direct.” And, in United States v. Cuen, we noted that the language regarding “unjust enrichment” is precatory text and, therefore, “it is clear” that a fine could be imposed in lieu of forfeitures on an accused convicted of absence without leave and assault and battery. The conclusion that fines can be imposed even in the absence of unjust enrichment is supported by a historical analysis and this Court’s precedent, along with intermediate military appellate ease law. We now hold that, based on the plain language of the rule as well as the history of a fine as punishment, it is not unlawful to impose a fine where there is no unjust enrichment. Our inquiry does not end here, however, because we must now decide whether the $75,000 fine imposed on Appellant violated the Excessive Fines Clause of the Eighth Amendment. B. The Eighth Amendment The Eighth Amendment provides that “[e]xeessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In United States v. Bajakajian, the Supreme Court set out a two-pronged analysis for determining whether the Excessive Fines Clause is violated. First, a court must determine if the fine falls within the Excessive Fines Clause and, if so, whether the fine is excessive. In this case, Appellant claims that, although his crimes were serious, the $75,000 fine is not proportional to the offenses, especially considering the other punishments imposed on Appellant. We must first determine whether the $75,000 fine is a fine within the meaning of the Excessive Fines Clause. This first prong of the Excessive Fines Clause analysis is clearly met in this case. As the Supreme Court explained, “at the time the Constitution was adopted, ‘the word “fine” was understood to mean a payment to a sovereign as punishment for some offense.’ ” The $75,000 fine was directly imposed on Appellant as part of his sentence and was to be paid to the" }, { "docid": "5274121", "title": "", "text": "appellants were each fined $5,000 on each count for an aggregate fine of $15,000. We reverse with respect to one count and affirm as to the remaining counts. Appellants present three arguments in urging reversal. These are: (1) that the three year sentence of appellant Thevis, when imposed consecutively with the sentence imposed in the Eastern District of Louisiana, constitutes cruel and unusual punishment in violation of the Eighth Amendment; (2) that as to appellant Thevis, the evidence in the record is insufficient to establish the element of scienter, and (3) that the publications charged against the appellants are not obscene and are thus a protected expression under the First Amendment. We address these arguments seriatim. I. Gruel and Unusual Punishment The crux of appellant Thevis’s argument is that his actions were undertaken during a period of uncertainty in the law of obscenity. As a result, he urges that the total length of his incarceration amounts to a cruel and unusual punishment, imposed despite a bona fide attempt to anticipate the position of the Supreme Court. Because we apply the Memoirs standard infra, and thus judge the material in question by a standard well known at the time of appellants’ actions, this argument has no force. Appellant Thevis also argues that because of the nature of the crime, and the changing attitudes of society toward sex, his punishment is excessive. In construing the cruel and unusual punishment clause of the Eighth Amendment, however, this court must confine its inquiry to whether conditions of confinement “shock the conscience,” are greatly disproportionate to the offense, or offend evolving notions of decency. Trop v. Dulles, 1958, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630; Weems v. United States, 1910, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793. We view appellant’s sentence in light of the discretion inherent in the district court, and decline to hold that a three year sentence, to be served consecutive to a five year sentence imposed in another prosecution, is cruel and unusual. On sentences in obscenity cases where the cruel and unusual argument has been made," }, { "docid": "6686089", "title": "", "text": "engage in a proportionality analysis, guided by the following criteria: (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed in the same jurisdiction for similar crimes; and (iii) the sentences imposed in other jurisdictions for the commission of the same crime. Id. at 290-92, 103 S.Ct. at 3009-11. This Court rejects the Solem analysis. The Solem factors are guidelines for evaluating whether a punishment violates the Cruel and Unusual Punishment Clause, not the Excessive Fines Clause. When the Austin Court explicitly declined the invitation to establish a test for analyzing the Excessive Fines Clause, it implied that the lower courts are not bound by the guidelines enunciated in the context of the Cruel and Unusual Punishment Clause. Further, another recent Supreme Court decision casts doubt on Solem’s continuing viability. See Harmelin v. Michigan, 501 U.S. 957,-, 111 S.Ct. 2680, 2686, 115 L.Ed.2d 836 (1991) (Scalia, J. joined by Rehnquist, CJ.) (concluding that the Eighth Amendment contains no guarantee); id. 501 U.S. at-, 111 S.Ct. at 2707 (Kennedy, J. joined by O’Connor, and Souter, JJ. concurring in part and concurring in the judgment) (limiting Solem’s applicability, explaining that the second and third factors are applicable “only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality”). Finally, and most significantly, only the first of the three Solem factors can be applied in the Excessive Fines context. As a practical matter, it is impossible to meaningfully compare the value of property subject to a civil forfeiture based on a criminal act with the possible criminal penalty for that act imposed in the same and other jurisdictions. Wall urges the Court to compare the possible fine under the United States Sentencing Guidelines (the “Guidelines”) for conviction of the criminal violation underlying the forfeiture action with the fine which would be imposed by the forfeiture. In other words, the Court is urged to compare the maximum fine for conviction of possession for sale of cocaine with Wall’s equity interest in the forfeited property." }, { "docid": "12135422", "title": "", "text": "power of a general court-martial to impose a fine violates the Fifth Amendment prohibition against deprivation of property without due process of law and constitutes cruel and unusual punishment in violation of Article 55, UCMJ, 10 U.S.C. § 855. We do not agree. Pursuant to Article 56, UCMJ, 10 U.S.C. § 856, the President of the United States has placed limits on the. amount of fine which may be adjudged by a special and summary court-martial, but he has set no maximum limit on the amount of fine which a general court-martial may impose. See paragraph 126h(3), MCM 1969 (Rev). A sentencing statute is not unconstitutional because it does not provide a maximum sentence. Earin v. Beto, 453 F.2d 376 (5th Cir. 1972), cert. denied 406 U.S. 909, 92 S.Ct. 1618, 31 L.Ed.2d 819 (1972) and the failure of a statute to fix a maximum fine does not render it unconstitutional. Singletary v. Wilson, 3 S.E.2d 802, 191 S.C. 153 (1939). When the legislative body has not imposed a maximum penalty, the power to impose a fine is limited by a constitutional provision that excessive fines shall not be imposed. The question here is whether the fine of $15,000.00 is excessive and violative of the Eighth Amendment to the United States Constitution. In determining whether a fine authorized by statute is excessive in the constitutional sense, due regard must be given to the object designed to be accomplished. State v. Trailer Service, Inc., 61 Wis.2d 400, 212 N.W.2d 683 (1973), (fine imposed on commercial trucker who exceeded vehicular weight limitations is proper to the importance and magnitude of the public interest sought to be protected, and to the circumstances and the nature of the act for which it is imposed); State v. Staub, 182 La. 1040, 162 So. 766 (1935) (fine imposed for violation of state statute prohibiting lotteries and related activities is proper). In order to justify the court in interfering and setting aside a fine authorized by statute, the fine must be so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment" }, { "docid": "15300801", "title": "", "text": "the appellant that rise to the level of a violation of the Eighth Amendment or of Article 55, UCMJ. This assignment of error is without merit. Conclusion We set aside the appellant’s conviction of specification 1 of Charge II as a lesser-included offense of specification 3 of Charge II. We also set aside specification 4 of Charge II as a lesser-included offense of specification 5 of Charge II. Specifications 1 and 4 of Charge II are dismissed. All other findings are affirmed. As a result of our action on the findings, we have reassessed the sentence in accordance with the principles of United States v. Cook, 48 M.J. 434 (1998), United States v. Peoples, 29 M.J. 426, 428 (C.M.A.1990), and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A.1986). Upon reassessment, we approve only so much of the sentence as extends to confinement for 21 years, forfeiture of all pay and allowances, reduction to pay-grade E-l, and a dishonorable discharge. As a result of our determination that conditions of the appellant’s pretrial confinement exceeded those required to ensure the appel lant’s presence for trial, we award an additional 87 days of credit towards his sentence to confinement. A new promulgating order, reflecting the findings and sentence as modified by this decision and the term of the pretrial agreement, shall be issued. . The appellant’s pretrial agreement required the convening authority to suspend all confinement in excess of 7 years for a period of 12 months from the date of the appellant's release from confinement. The convening authority added an additional year when the appellant did not pay the adjudged fine. . The military judge erred in imposing a date for payment of the fine. When a fine is adjudged, it does not become due and payable until the convening authority takes action approving the fine. Art. 57, UCMJ. Although the military judge erred in setting a payment due date, this error did not prejudice the appellant. . United. States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411, 1967 WL 4276 (1967). . In his brief, the appellant reasserts the claim" }, { "docid": "21794008", "title": "", "text": "STRICKLAND, Judge: In accordance with his pleas, appellant was convicted of two specifications of conspiracy, two specifications of failure to obey a regulation, and two specifications of wrongful use of a controlled substance in violation of Articles 81, 92, and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, and 912a, respectively. All offenses were drug related. The military judge sentenced appellant to confinement for six months, a fine of $2,682.00, reduction to E-l, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, but suspended confinement in excess of forty-five days for twelve months. On appeal, appellant asserts that he was not unjustly enriched and that the adjudged fine was therefore inappropriate. He cites decisions of this Court in which fines have been disapproved pursuant to this rationale. See United States v. Huseby, No. 87-4256 (NMCMR 30 June 1988); United States v. Ward, No. 88-0316 (NMCMR 21 June 1988). The government contends that a fine is appropriate and cites decisions of this Court in which fines have been upheld in the absence of unjust enrichment. See United States v. Fender, No. 88-0784 (NMCMR 22 August 1988); United States v. Barcelo, No. 88-1927 (NMCMR 25 July 1988); United States v. Wait, No. 88-1192 (NMCMR 25 July 1988); United States v. Dutcher, No. 88-1569 (NMCMR 25 July 1988). A fine is a legal punishment which may be adjudged in any case in which a person has been found guilty of an offense by a court-martial. Rule for Courts-Martial (R.C.M.) 1003(a), Manual for Courts-Martial (MCM), United States, 1984. In a general court-martial, there is no limit as to the amount of fine which may be imposed, United States v. Williams, 18 M.J. 186 (C.M.A.1984), and a special court-martial may impose a fine or both forfeitures and a fine as long as the total amount of money involved does not exceed the total amount of forfeitures authorized. United States v. Harris, 19 M.J. 331 (C.M.A.1985). In military law, fines have historically been adjudged with a view to reimbursing the United States for a pecuniary loss suffered as a" }, { "docid": "12170401", "title": "", "text": "thus violating the eighth amendment. F & M contends that the judge abused his discretion by basing the fine on the one million dollar penalty accepted by another defendant, the Foley Company, as part of its plea bargain. F & M relies on Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), in arguing that its fine is disproportionate. The Supreme Court suggested three factors for a court to consider in reviewing a sentence for disproportionality: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for the commission of the same crime in other jurisdictions. Id. at-, 103 S.Ct. at 3011. Evaluating these factors, we hold that the district court’s sentence was not disproportionate and thus not illegal. F & M brazenly committed a grave crime. The jury found the company guilty of conspiring to commit per se violations of the Sherman Act in a series of meetings that obviously were illegal. Moreover, F & M was one of the ringleaders of that conspiracy. As to the sentences imposed in the same jurisdiction, the penalties levied on the other defendants in this case provide a good example. Every individual defendant received a fine and a prison sentence; all the corporate defendants received one million dollar fines. Thus, in comparison, F & M’s fine does not appear severe. Moreover, in comparing the sentence with those received by defendants in other jurisdictions, F & M provided extensive statistics on the infrequency of the imposition of the maximum fine. These statistics, however, illustrate that defendants frequently are fined, and fined in large amounts. Although F & M’s one million dollar fine is substantial, its amount was the expression of the Congress, not the judiciary. Accordingly, we hold that the fine is not disproportionate to the gravity of the offense, the public policy considerations implicated, and the Congressional determinations. F & M also contends that the district court abused its discretion by taking another defendant’s punishment into account when fining F" }, { "docid": "8185843", "title": "", "text": "In Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 3006, 77 L.Ed.2d 637 (1983), the Supreme Court applied the principle to hold that the Cruel and Unusual Punishment Clause “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed. ” (Emphasis added). At issue in that case was the constitutionality of a life imprisonment without parole sentence for an offender who committed his seventh nonviolent felony by uttering a ‘no account’ check in the amount of $100. The Court’s three-part test in Solem has come to be standard inquiry in constitutional proportionality analysis, looking to: 1) the inherent gravity of the offense, 2) the sentences imposed for similarly grave offenses in the same jurisdiction, and 3) sentences imposed for the same crime in other jurisdictions. 463 U.S. at 290-91, 103 S.Ct. at 3009-10. We conclude, however, that the above three-part test does not apply to the Excessive Fines Clause analysis for two reasons. First, the holding of Solem has been put into doubt by Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). At least two justices, Justice Scalia and Chief Justice Rehnquist, flatly stated that the proportionality principle did not exist in the Eighth Amendment and thus Solem was wrongly decided. Id. at 964-66, 111 S.Ct. at 2686. Although the separate opinion of Justice Kennedy, joined by Justice O’Connor and Justice Souter, did not go so far, it did limit the scope of Solem, stating, “the Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.”. Id. at 1000, 111 S.Ct. at 2705. Second, the Solem proportionality principle, if it does exist in the Eighth Amendment, derives from the Cruel and Unusual Punishment Clause and not the Excessive Fines Clause. While the principle of proportionality is traditionally associated with discussions of whether punishment is cruel and unusual, see, e.g., Harmelin v. Michigan, 501 U.S. at 957, 111 S.Ct. at 2680, we believe that it is not applicable when considering the excessiveness of a forfeiture" }, { "docid": "8185842", "title": "", "text": "whether its illegal use was an isolated event or had been repeated; and (5) whether the purpose of acquiring, maintaining or using the property was to carry out the offense. No one factor is dispositive but, to sustain a forfeiture against an Eighth Amendment challenge, the court must be able to conclude, under the totality of circumstances, that the property was a substantial and meaningful instrumentality in the commission of the offense, or would have been, had the offensive conduct been carried out as intended. In adopting this instrumentality test for determining excessiveness of in rem forfeitures, we are mindful that some courts have also considered and adopted a proportionality test. See, e.g., United States v. R.R. # 1, 14 F.3d at 874-75; United States v. 6625 Zumirez Drive, 845 F.Supp. at 732-33. Traditionally, the principle of proportionality in the Eighth Amendment has been associated with the Cruel and Unusual Punishment Clause, rather than the Excessive Fines Clause. See Weems v. United States, 217 U.S. 349, 366-67, 30 S.Ct. 544, 548-49, 54 L.Ed. 793 (1910). In Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 3006, 77 L.Ed.2d 637 (1983), the Supreme Court applied the principle to hold that the Cruel and Unusual Punishment Clause “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed. ” (Emphasis added). At issue in that case was the constitutionality of a life imprisonment without parole sentence for an offender who committed his seventh nonviolent felony by uttering a ‘no account’ check in the amount of $100. The Court’s three-part test in Solem has come to be standard inquiry in constitutional proportionality analysis, looking to: 1) the inherent gravity of the offense, 2) the sentences imposed for similarly grave offenses in the same jurisdiction, and 3) sentences imposed for the same crime in other jurisdictions. 463 U.S. at 290-91, 103 S.Ct. at 3009-10. We conclude, however, that the above three-part test does not apply to the Excessive Fines Clause analysis for two reasons. First, the holding of Solem has been put into doubt by Harmelin v. Michigan, 501" }, { "docid": "7471120", "title": "", "text": "judge failed to advise the appellant during the providence inquiry that a fine could be imposed. We agree. The appendix to the pretrial agreement contains two paragraphs relevant to our decision: 2. The Convening Authority agrees to disapprove any sentence in excess of the following: Dismissal, total forfeiture of all pay and allowances, and confinement for 18 months. 4. The Convening Authority may approve any other sentence lawfully adjudged. The government argues that this language “specified that the convening authority could approve any other sentence lawfully adjudged, limiting only certain specified provisions, and appellant confirmed that he understood that a fine could be approved in this context.” In an earlier case involving this precise issue, this court held that “the analysis utilized by the Court of Military Appeals in United States v. Williams, 18 M.J. 186 (C.M.A.1984) is controlling.” United States v. Morales-Santana, 32 M.J. 557 (A.C.M.R.1990). In Williams, the Court of Military Appeals held that: Unless the pretrial agreement specifically mentions the possibility of a fine or there is other evidence that the accused was aware that a fine could be imposed, a general court-martial may not include a fine in addition to total forfeitures in the guilty-plea case unless the possibility of a fine has been made known to the accused during the providence inquiry. Id. at 189; accord Morales-Santana, 32 M.J. 557; United States v. Gibbs, 30 M.J. 1166 (A.C.M.R.1990). As the military judge failed to advise the appellant during the providence inquiry that a fine could be imposed and the pretrial agreement did not specifically provide that a fine could be imposed, we must set aside the convening authority’s action in approving the fine. In view of our decision to set aside the fine, there can be no imposition of confinement to enforce payment thereof. Therefore, we need not address the appellant’s remaining assignment of error. The court affirms only so much of the findings of guilty of Charge I and its Specification as finds that the appellant did, between September 1988 and 30 March 1990, wrongfully appropriate $17,922.26, in violation of Article 121, UCMJ. The" }, { "docid": "12139323", "title": "", "text": "court-martial sentence has long been a part of military law. See W. Winthrop, Military Law & Precedents 420 (2d ed. 1920 reprint). The Manual for Courts-Martial, United States, 1969 (Revised edition), states that, “[g]eneral courts-martial have the further power to adjudge fines in addition to forfeitures in appropriate eases.” Para. 126A (3). However, it adds, “[a] fine normally should not be adjudged against a member of the armed forces unless the accused was unjustly enriched as the result of the offense of which he is convicted.” Id. Other than the proscriptions of Article 55, UCMJ, 10 U.S.C. § 855, there are no limits on the amount of a fine which may be imposed by a general court-martial. However, the granted issue challenges the fact of the imposition of the fine rather than the amount of the fine. Thus, we must consider the matter in terms of military due process where the accused was not specifically advised of the possibility of a fine as part of the maximum punishment during the providence of the guilty plea inquiry. The service Courts of Military Review have considered this issue. In United States v. Martinez, 2 M.J. 1123 (C.G.C. M.R. 1976), the United States Coast Guard Court of Military Review concluded that the declaration of maximum punishments by the military judge “ ‘mark[s] out the legal framework within which the court may properly exercise its powers.’ ” Id. at 1124, quoting United States v. Crawford, 12 U.S.C.M.A. 203, 204, 30 C.M.R. 203, 204 (1961). The United States Navy Court of Military Review followed Martinez in United States v. Whitekiller, 8 M.J. 620 (1979), stating: A study of the law convinces us that in this case the failure of the military judge to advise appellant that a fine as well as total forfeitures could be imposed did not render the guilty plea improvident but did establish the perimeter of pecuniary loss. We recognize that the amount of a fine in a general court-martial is ordinarily unlimited by law and thus we will conclude that, in a case of this nature, before both total forfeitures and" }, { "docid": "22927439", "title": "", "text": "are not factually identical to the instant case. And there may have been some more serious violations of section 848 which have been less severely punished. Our review of the cases, however, indicates that the sentences imposed on appellants are not so out of line with those imposed on other offenders as to constitute cruel and unusual punishment. The last factor mentioned in Solem relates to “the sentences imposed for commission of the same crime in other jurisdictions.” 103 S.Ct. at 3011. Due to the unique nature of section 848, consideration of this factor is difficult, if not impossible. In short, given the key role played by the continuing criminal enterprise provision in the federal drug enforcement scheme and the unparalleled comprehensiveness of that scheme, it is doubtful that “the same crime” exists in “other jurisdictions.” In any event, our examination of comparable state-law offenses reveals no serious disparity indicating that appellants’ sentences are excessive. See, e.g., Fla.Stat.Ann. § 775.084(4)(a) (1976) (habitual felony offender punishable by 10 years’ to life imprisonment); Fla.Stat.Ann. § 893.13(1)(b) (Supp.1984) (possession or sale of over 10 grams of narcotics punishable by up to 30 years’ imprisonment); Fla.Stat.Ann. § 893.13(1)(c)(1) (Supp.1984) (delivery of narcotics to minor punishable by up to 30 years’ imprisonment); Fla.Stat.Ann. § 895.04 (Supp.1984) (RICO violation punishable by up to 30 years’ imprisonment). On the basis of the foregoing analysis, we hold that appellants’ sentences under section 848 are not so grossly disproportionate to their crime as to violate the eighth amendment. B. “Stand Committed” Fines At the time of sentencing, Constantine Yamanis was fined a total of $130,000 and was ordered “to stand committed until the fine is paid or until the defendant is otherwise discharged by due course of law.” Noting that even if paroled, he would remain incarcerated pending payment of his fines, Yamanis now contends that because of his indigency, the imposition of “stand committed” fines will result in the denial of due process and equal protection. He relies entirely on the district court’s appointing trial counsel as evidence of his indigency. We dismiss this claim out of hand." }, { "docid": "21699321", "title": "", "text": "DECISION ORSER, Judge: Tried by a general court-martial with members, the accused was convicted, consonant with his pleas, of one specification of larceny of checks valued at about $4,346.00 and 27 specifications of forgery, in violation of Articles 121 and 123 of the Uniform Code of Military Justice, 10 U.S.C. §§ 921, 923. The adjudged sentence was a bad conduct discharge, confinement at hard labor for 18 months, forfeiture of $100.00 per month for 18 months, a fine to the United States in the amount of $1,000.00 and reduction to the grade of airman basic. In accordance with the terms of a pre-trial agreement, the convening authority disapproved the fine and otherwise approved the sentence. For the reasons stated in United States v. Kirkle, 50 C.M.R. 552 (A.F.C.M.R. 1975), pet. denied, 50 C.M.R. 904 (A.F.C.M. R.1975), we find no merit in the accused’s contention that the forgery specifications were multiplicious for sentencing purposes with the larceny specification. It bears noting that United States v. Cashwell, 45 C.M.R. 748 (A.C.M.R.1972), pet. denied, 45 C.M.R. 928 (1972), a case relied on by the accused for his contention of multiplicity, was rejected by a different panel of the Army Court of Military Review in favor of our reasoning in Kirkle. United States v. Hudson, 2 M.J. 958 (A.C.M.R.1976). In another assertion of error, appellate defense counsel claim that the review of the staff judge advocate is prejudicially defective because of the reviewer’s advice regarding the maximum imposable punishment. We disagree. During trial the military judge determined that several of the forgery offenses were multiplicious for sentencing purposes and so instructed the court. In his post-trial review to the convening authority, the staff judge advocate made the following comment concerning the judge’s determination: After appropriate argument for both sides, the military judge erroneously, but to the benefit of the accused, ruled that the maximum imposable confinement was 70 years confinement at hard labor with accessory penalties. (Emphasis ours) Thereafter, the staff judge advocate recommenced that, with the exception of the $1,000.00 fine, the adjudged sentence be approved. As recited above, the convening authority so" } ]

[ { "docid": "22996202", "title": "", "text": "issues involved and 5) in a new trial probably would produce an acquittal. United States v. Diggs, 649 F.2d 731, 739 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). The Ninth Circuit has adopted the view that “when a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a codefendant, the evidence is not ‘newly discovered.’ ” Id. at 740 (citation omitted). Appellant acknowledges the Diggs precedent but argues that the codefendants did not choose to withhold their testimony. Rather, appellant argues that the co-defendants were prevented from testifying by their attorneys. This mere allegation is insufficient to establish that the co-defendants’ testimony is newly discovered. There is no evidence that they were forced to refrain from testifying. Furthermore, at the time it was probably prudent for them to decline to testify. Tapia-Zaragosa, Barajas-Rangel and Gonzalez-Ramirez had each pled guilty on July 17, but had not been sentenced yet. Testifying now, however, is safe for the co-defendants, as they have already been sentenced. It would encourage perjury to allow a new trial once co-defendants have determined that testifying is no longer harmful to themselves. They may say whatever they think might help their co-defendant, even to the point of pinning all the guilt on themselves, knowing they are safe from retrial. Such testimony would be untrustworthy and should not be encouraged. We find that the judge did not abuse his discretion in refusing to grant a new trial on the basis of newly discovered evidence. Appellant further argues that the judge abused his discretion in not granting an evidentiary hearing on the motion. Like the decision to grant or deny the motion itself, the standard of review for the grant ing or denial of an evidentiary hearing in this situation is abuse of discretion. United States v. Nace, 561 F.2d 763, 772 (9th Cir.1977). Because there was no reason to admit the testimony, there was likewise no reason to hold an evidentiary hearing about it. The judge did not abuse his discretion in finding that an evidentiary hearing was" } ]

[ { "docid": "7461303", "title": "", "text": "enforcement officials and avoiding deportation. Jorge disavowed any statement he made on the stand implicating Awon and stated he had fingered Awon to avoid prosecution. James St. Louis, who did not testify at trial, averred that he was solely responsible for the planning of the second fire and that Awon played no part in the arson. Roberto Neves, the brother of Jorge and Joaquim Neves, stated that he and his family were threatened by the police that if Joaquim did not implicate Awon, their sister’s children would be taken away and Roberto would be jailed. Roberto also reported that Joaquim had confessed to Roberto that he, Joaquim, had lied about Awon’s involvement to “save himself” and receive a lower sentence. Roberto did not testify at trial. Finally, Awon submitted his own affidavit denying any involvement in the planning or execution of the fire and averring that James St. Louis had confessed to him that he and Joaquim had set the January 18,1995, fire. The district court held an evidentiary hearing on Awon’s two motions. Through counsel, Joaquim notified the court that he withdrew his affidavit and recanted the statements he had made therein. Thereafter, at the hearing, the government called Joaquim to testify. During his testimony at the evidentiary hearing, Joaquim described a four and one-half hour meeting with Awon’s attorney that only ended when Joaquim agreed to sign the handwritten affidavit compiled by Awon’s attorney. Joaquim stated that Awon’s attorney informed him that he would not submit the affidavit to the court until Joaquim had signed and returned a typed copy of the affidavit. When Joaquim received the typed copy he discarded it and assumed the matter was closed. He reported being “surprised” when he discovered that Awon’s attorney had filed the handwritten copy. Awon himself did not testify at the hearing on his two motions nor did James St. Louis or Jorge testify concerning the facts they had averred in their affidavits. Roberto, having been deported, was unavailable to testify. Although Awon’s attorney was available to testify, he did not take the stand to counter Joaquim’s description of" }, { "docid": "7461309", "title": "", "text": "arson statute. Bui v. DiPaolo, 170 F.3d 232, 236 (1st Cir.1999), cert. denied, 529 U.S. 1086, 120 S.Ct. 1717, 146 L.Ed.2d 640 (2000). On an appeal from the denial of a § 2255 motion, we review the district court’s legal determinations de novo and the court’s factual findings for clear error. Familia-Consoro v. United States, 160 F.3d 761, 764-65 (1st Cir.1998). 1. Newly Discovered Evidence Awon contends that the purported newly discovered evidence establishes his actual innocence. Assuming arguendo that Awon’s claims of actual innocence based on the evidence in question can establish some legally cognizable basis for a motion under section 2255, the evidence proffered by Awon falls far short of demonstrating his innocence. We quickly eliminate Awon’s and Roberto’s affidavits because they do not meet the standard for “newly discovered evidence.” United States v. Desir, 273 F.3d 39, 42 (1st Cir.2001). This court has held that a defendant seeking a new trial based on newly discovered evidence must prove four elements: (1) the newly discovered evidence was unknown or unavailable at the time of trial; (2) the defendant was duly diligent in trying to discover it; (3) the evidence was material; and (4) the evidence was such that it would probably result in an acquittal upon retrial. Id. Awon failed to prove that the information was either unknown or unavailable at the time of trial. The “new” information in Awon’s affidavit, James St. Louis’s confession to Awon that he was solely responsible for the second fire, was plainly available at the time of trial. United States v. Levy-Cordero, 156 F.3d 244, 248 (1st Cir.1998). In the affidavit itself Awon asserts that on the day after that fire James St. Louis had confessed committing the arson to him. Why Awon did not reveal the confession at trial but instead suggested that Joaquim had set the second fire is best known to him. In any event, the concealed confession of his co-defendant cannot be deemed “newly discovered.” Roberto’s testimony was also available at the time of trial. Awon argues that he had no reason to suspect that Roberto had information" }, { "docid": "7461300", "title": "", "text": "November, 1994, he was again approached by Anse St. Louis, on behalf of Awon, with the request that he burn the Ames Street property. Joaquim said he agreed and that he again solicited James St. Louis to help him. According to Joaquim, Joaquim was to receive a cash payment for his involvement while James St. Louis had directly negotiated with Awon for the receipt of a used Ford Taurus from Awon’s car dealership. On January 18, 1995, Joaquim and James St. Louis drove to the Ames Street property in the car of Joaquim’s girlfriend, Sandy Casamiro, and set the building on fire. The two men returned to Joaquim’s house, placed their soiled clothes in a bag, awakened Casamiro, and had her drive them to a nearby dumpster to discard their clothing. Casamiro corroborated Joaquim’s testimony about the late night excursion to discard the clothing worn at the time of the arson. The next day, according to the records of Awon’s used car dealership, Awon transferred a Ford Taurus to James St. Louis for $2,000. Joaquim testified that, a week later, he received $2,100 in cash from Awon. Testifying on behalf of Awon, Anse St. Louis said that he never spoke with Awon or Joaquim about the burning of the Ames Street property. Awon’s parents testified that they were the owners and actual parties in interest with respect to the building and that Awon’s involvement was limited to responding to maintenance requests and showing the building to prospective tenants. In essence, it was their testimony that Awon had no financial stake in the property. Awon testified that he believed that Joaquim had set the fire in retaliation for Awon’s refusal to post bail for Joaquim when he was in INS custody and in reaction to an argument between the two men prior to the second fire. The jury found Awon guilty of all counts. James St. Louis was acquitted of the first four counts, those related to the September 16, 1994, fire, and found guilty of the remaining four counts. Awon was sentenced to a 153-month term of imprisonment, which represented" }, { "docid": "7461297", "title": "", "text": "company for the damage from this fire and were paid in settlement $4,171 for the damage. In the early morning hours of January 18, 1995, another fire at the building resulted in the destruction not only of the Awon’s building but of three adjacent buildings as well. The Awons again filed a claim with their insurance company and negotiated a settlement of $85,000 for the loss of the building and demolition expenses, and $6,176 for lost rental income. Investigation of the two fires resulted in an eight count indictment charging Awon and two co-defendants, James St. Louis and Joaquim Neves (“Joaquim”) with arson and mail fraud. In Counts I through IV, Awon and James St. Louis were charged with arson, in violation of 18 U.S.C. § 844(i) (2000) (Count I), mail fraud in violation of 18 U.S.C. § 1341 (Counts II and III), and use of a fire to commit a felony, in violation of 18 U.S.C. § 844(h) (Count IV). Those four counts related to the September 16, 1994, fire and the subsequent filing of an insurance claim. Awon, James St. Louis and Joaquim were charged in Counts V through VIII with four corresponding offenses, arson (Count V), mail fraud (Counts VI and VII) and use of fire to commit a felony (Count VIII). The latter four counts pertained to the January 18, 1995, fire and the filing of the second insurance claim. Prior to trial, Joaquim pleaded guilty to Counts V, VI, and VII (Count VIII was dismissed) and, pursuant to a cooperation agreement with the government, testified at trial as a witness against his two co-defendants, Awon and James St. Louis. A. The Trial Joaquim, testifying pursuant to a plea agreement, stated at trial that, in the summer of 1994, Anse St. Louis had asked him, purportedly on Awon’s behalf, if he would burn the Ames Street property. Although initially hesitant, he agreed to commit the arson and solicited the help of James St. Louis. Joaquim further testified that he had several conversations directly with Awon about the arson and the promised pay-off. According to Joaquim’s testimony," }, { "docid": "7461305", "title": "", "text": "the events leading to the submission of Joaquim’s affidavit. Awon presented no other testimony or documentary evidence to support his motions. The government submitted an affidavit of Emanuel Gomes, the investigating officer from the Brockton Police Department. Gomes averred that he had neither threatened the Neves family nor had he made promises regarding Joaquim’s or Jorge’s cooperation in the investigation. In addition, the government submitted two reports compiled by Special Agent Thomas Wlodyka (“Wlodyka”) of the Bureau of Alcohol, Tobacco and Firearms. Wlodyka had interviewed both Joaquim and Jorge following the submission of their affidavits in support of Awon’s post-conviction motions. Wlodyka reported that the brothers recanted their affidavits. Jorge stated that Awon’s attorney presented him with an affidavit to sign; that Awon’s attorney told Jorge that the statement was “basically what you said at the trial;” and that he did not review it prior to signing it. Joa-quim’s statement to Wlodyka was consistent with his testimony at the evidentiary hearing. Both men informed Wlodyka their trial testimony was truthful. Following the evidentiary hearing, the district court denied both motions. The court did not consider Roberto Neves’s affidavit to be “newly discovered.” According to the district court, the fact that defense counsel failed to interview Roberto Neves prior to trial did not support a finding that his testimony was unknown or unavailable. Further, it found that Jorge’s affidavit did not support a new trial because the portion of his trial testimony recanted in the affidavit was not critical to the prosecution’s case. Thus, even if it were omitted it was unlikely to result in a different outcome for Awon. As to James St. Louis’ affidavit, which was viewed with “great skepticism,” the court found it incredible on its face. The district court acknowledged that Joaquim’s affidavit was the most supportive of a new trial. At trial, Joaquina had provided the most damning testimony against Awon. In the end, however, it found Joaquim’s testimony at trial, and his testimony at the evi-dentiary hearing recanting his affidavit, credible. Finally, without discussion, the district court stated that it considered Awon’s argument that the" }, { "docid": "7461299", "title": "", "text": "Awon agreed to pay him $5,000 for committing the arson. Just prior to the first fire, however, Joaquim was detained by the Immigration and Naturalization Service (“INS”) which had begun deportation proceedings against him. Jorge Neves (“Jorge”), Joaquim’s brother, testified at trial that while Joaquim was in INS custody, James St. Louis sought Jorge’s help to burn the Ames Street property. Jorge said that James St. Louis promised that they would be paid by Awon for the arson. Jorge testified, however, that he never spoke directly to Awon regarding the fire or payment. Jorge farther testified that, on September 16, 1994, he and James St. Louis spread gasoline around the first floor of the building, ignited it, and fled in James St. Louis’ car. The fire was quickly extinguished. Because “nothing happened,” Jorge testified that he was never paid for the arson. As the result of his cooperation and testimony, Jorge was not prosecuted for his involvement in setting the September 16, 1994, fire. Joaquim testified that, after his own release from INS custody in November, 1994, he was again approached by Anse St. Louis, on behalf of Awon, with the request that he burn the Ames Street property. Joaquim said he agreed and that he again solicited James St. Louis to help him. According to Joaquim, Joaquim was to receive a cash payment for his involvement while James St. Louis had directly negotiated with Awon for the receipt of a used Ford Taurus from Awon’s car dealership. On January 18, 1995, Joaquim and James St. Louis drove to the Ames Street property in the car of Joaquim’s girlfriend, Sandy Casamiro, and set the building on fire. The two men returned to Joaquim’s house, placed their soiled clothes in a bag, awakened Casamiro, and had her drive them to a nearby dumpster to discard their clothing. Casamiro corroborated Joaquim’s testimony about the late night excursion to discard the clothing worn at the time of the arson. The next day, according to the records of Awon’s used car dealership, Awon transferred a Ford Taurus to James St. Louis for $2,000. Joaquim" }, { "docid": "7461310", "title": "", "text": "of trial; (2) the defendant was duly diligent in trying to discover it; (3) the evidence was material; and (4) the evidence was such that it would probably result in an acquittal upon retrial. Id. Awon failed to prove that the information was either unknown or unavailable at the time of trial. The “new” information in Awon’s affidavit, James St. Louis’s confession to Awon that he was solely responsible for the second fire, was plainly available at the time of trial. United States v. Levy-Cordero, 156 F.3d 244, 248 (1st Cir.1998). In the affidavit itself Awon asserts that on the day after that fire James St. Louis had confessed committing the arson to him. Why Awon did not reveal the confession at trial but instead suggested that Joaquim had set the second fire is best known to him. In any event, the concealed confession of his co-defendant cannot be deemed “newly discovered.” Roberto’s testimony was also available at the time of trial. Awon argues that he had no reason to suspect that Roberto had information germane to his defense and thus cannot be penalized for failing to unearth and present Roberto’s testimony. A defendant, however, must have been duly diligent in attempting to procure exculpatory evidence prior to trial. United States v. Conley, 249 F.3d 38, 44 (1st Cir.2001). Simply because it may not have occurred to Awon and his counsel that Roberto had information regarding the crime that does not mean they were duly diligent on the facts of this case. Roberto was known to Awon as the brother of Joaquim and Jorge, the government’s primary witnesses, both of whom were implicated in the crime. Roberto and his sister, Helena Neves, were interviewed by the police during the investigation. Indeed, it was Helena Neves, who was dating James St. Louis, who contacted the police and informed them that St. Louis and Jorge were involved in the arson. Moreover, the credibility of Roberto’s affidavit was severely undermined, insofar as it related to conversations with Joaquim, by Joaquim’s later repudiation of his own affidavit and testimony at the evidentiary hearing. Similarly," }, { "docid": "6410920", "title": "", "text": "Louis refused to answer him. Joaquim’s mother testified that, when her son was in INS custody, she gave St. Louis $1,000 toward the $3,000 needed for his bail and, the following day, Joaquim was released. The defense argued that this evidence showed, inferentially, that St. Louis had supplied the remaining $2,000, which, as soon as Joaquim repaid it, St. Louis used to buy the car from defendant. On cross-examination by the government, Joaquim’s mother stated that she did not know whether St. Louis put up any money for Joaquim’s release on bail from INS custody. C. Motive The government introduced evidence showing that the Awons were losing money on the Ames buildings and, at the time of both fires, the property was insured for loss to the structure of up to $80,000, and losses attributable to business interruption of up to $12,000. After the first fire, defendant and his father negotiated an insurance settlement in the amount of $4,171. After the second fire, they negotiated a settlement totalling $91,176, and then used this money to pay their mortgage on the property. Defendant’s parents testified that all of the money invested in the Ames building belonged to them, that their son had no responsibility for financial expenditures related to the building, and that he had never received rental income from the apartments. They explained that their son’s name was included on the deed and mortgage only because they did not speak English fluently and needed their son’s assistance to translate the documents. They described their son’s involvement with the property as limited to showing the apartments to prospective tenants and responding on occasion to maintenance requests. They also stated that they, not their son, received the settlement money after the fires. Defendant testified that, while a co-owner of the Ames building, he did not put up any of the purchase money, make any mortgage payments, or pay taxes on the property. On cross-examination, however, the government introduced evidence that defendant had made at least one mortgage payment on the property. Defendant then stated that he could not remember having made any" }, { "docid": "6410919", "title": "", "text": "in the negative, but smirked suspiciously. On cross-examination, defendant stated that he did not tell the police when they interviewed him before trial about any existing hostility between himself and Joa-quim. St. Louis’ brother denied having any conversation with defendant or Joaquim about burning defendant’s property. B. The Car Transfer In addition to Joaquim’s testimony that defendant paid St. Louis with a car, the government introduced into evidence business records belonging to the defendant’s auto company. These indicate that defendant sold a car to St. Louis for $2,000 one day after the second fire. They also indicate that, a few months earlier, the company had purchased that same car for $2,220. Defendant testified that the sale to St. Louis was a legitimate one, for which he received $2,000 in cash. He explained that he sold at a loss because the car had mechanical problems and had failed to sell for a few months at the intended price of $3,500. Defendant said that he questioned St. Louis about the source of the $2,000, and that St. Louis refused to answer him. Joaquim’s mother testified that, when her son was in INS custody, she gave St. Louis $1,000 toward the $3,000 needed for his bail and, the following day, Joaquim was released. The defense argued that this evidence showed, inferentially, that St. Louis had supplied the remaining $2,000, which, as soon as Joaquim repaid it, St. Louis used to buy the car from defendant. On cross-examination by the government, Joaquim’s mother stated that she did not know whether St. Louis put up any money for Joaquim’s release on bail from INS custody. C. Motive The government introduced evidence showing that the Awons were losing money on the Ames buildings and, at the time of both fires, the property was insured for loss to the structure of up to $80,000, and losses attributable to business interruption of up to $12,000. After the first fire, defendant and his father negotiated an insurance settlement in the amount of $4,171. After the second fire, they negotiated a settlement totalling $91,176, and then used this money to" }, { "docid": "7461301", "title": "", "text": "testified that, a week later, he received $2,100 in cash from Awon. Testifying on behalf of Awon, Anse St. Louis said that he never spoke with Awon or Joaquim about the burning of the Ames Street property. Awon’s parents testified that they were the owners and actual parties in interest with respect to the building and that Awon’s involvement was limited to responding to maintenance requests and showing the building to prospective tenants. In essence, it was their testimony that Awon had no financial stake in the property. Awon testified that he believed that Joaquim had set the fire in retaliation for Awon’s refusal to post bail for Joaquim when he was in INS custody and in reaction to an argument between the two men prior to the second fire. The jury found Awon guilty of all counts. James St. Louis was acquitted of the first four counts, those related to the September 16, 1994, fire, and found guilty of the remaining four counts. Awon was sentenced to a 153-month term of imprisonment, which represented a downward departure from the applicable guideline sentencing range of 198 to 217 months. Awon was also ordered to pay restitution to the Scottsdale Insurance Company in the amount of $95,788.36. This court affirmed his conviction on February 2, 1998. United States v. Awon, 135 F.3d 96 (1st Cir.1998). B. Post-conviction Proceedings On February 1, 1999, pursuant to 28 U.S.C. § 2255, Awon filed a Motion to Set Aside, Vacate, or Correct Sentence and, in an essentially duplicative pleading, he filed a motion for a new trial. In the two motions, Awon pursued identical claims: (1) that newly-discovered evidence warranted a new trial; and (2) that with respect to Count V of the indictment the government’s evidence at trial was insufficient to satisfy the federal jurisdictional element of 18 U.S.C. § 841© (2000). The newly-discovered evidence was set out in five affidavits. In their affidavits, Jorge Neves and Joaquim Neves recanted their trial testimony implicating Awon in the fires. Joaquim averred that he had falsified his testimony in the hopes of gaining favor with law" }, { "docid": "7461298", "title": "", "text": "of an insurance claim. Awon, James St. Louis and Joaquim were charged in Counts V through VIII with four corresponding offenses, arson (Count V), mail fraud (Counts VI and VII) and use of fire to commit a felony (Count VIII). The latter four counts pertained to the January 18, 1995, fire and the filing of the second insurance claim. Prior to trial, Joaquim pleaded guilty to Counts V, VI, and VII (Count VIII was dismissed) and, pursuant to a cooperation agreement with the government, testified at trial as a witness against his two co-defendants, Awon and James St. Louis. A. The Trial Joaquim, testifying pursuant to a plea agreement, stated at trial that, in the summer of 1994, Anse St. Louis had asked him, purportedly on Awon’s behalf, if he would burn the Ames Street property. Although initially hesitant, he agreed to commit the arson and solicited the help of James St. Louis. Joaquim further testified that he had several conversations directly with Awon about the arson and the promised pay-off. According to Joaquim’s testimony, Awon agreed to pay him $5,000 for committing the arson. Just prior to the first fire, however, Joaquim was detained by the Immigration and Naturalization Service (“INS”) which had begun deportation proceedings against him. Jorge Neves (“Jorge”), Joaquim’s brother, testified at trial that while Joaquim was in INS custody, James St. Louis sought Jorge’s help to burn the Ames Street property. Jorge said that James St. Louis promised that they would be paid by Awon for the arson. Jorge testified, however, that he never spoke directly to Awon regarding the fire or payment. Jorge farther testified that, on September 16, 1994, he and James St. Louis spread gasoline around the first floor of the building, ignited it, and fled in James St. Louis’ car. The fire was quickly extinguished. Because “nothing happened,” Jorge testified that he was never paid for the arson. As the result of his cooperation and testimony, Jorge was not prosecuted for his involvement in setting the September 16, 1994, fire. Joaquim testified that, after his own release from INS custody in" }, { "docid": "7461311", "title": "", "text": "germane to his defense and thus cannot be penalized for failing to unearth and present Roberto’s testimony. A defendant, however, must have been duly diligent in attempting to procure exculpatory evidence prior to trial. United States v. Conley, 249 F.3d 38, 44 (1st Cir.2001). Simply because it may not have occurred to Awon and his counsel that Roberto had information regarding the crime that does not mean they were duly diligent on the facts of this case. Roberto was known to Awon as the brother of Joaquim and Jorge, the government’s primary witnesses, both of whom were implicated in the crime. Roberto and his sister, Helena Neves, were interviewed by the police during the investigation. Indeed, it was Helena Neves, who was dating James St. Louis, who contacted the police and informed them that St. Louis and Jorge were involved in the arson. Moreover, the credibility of Roberto’s affidavit was severely undermined, insofar as it related to conversations with Joaquim, by Joaquim’s later repudiation of his own affidavit and testimony at the evidentiary hearing. Similarly, Roberto’s averments that he and his family were threatened by the police were neutralized by the affidavits of Detective Thomas Enos and Special Agent Thomas Wlodyka. Enos and Wlodyka, the officers primarily responsible for investigating the arson, denied that they had threatened Roberto, or his family, with adverse consequences if they did not implicate Awon. On the other hand, James St. Louis’s averments in his affidavit may indeed be deemed “newly discovered.” United States v. Montillar-Rivera, 115 F.Bd 1060, 1066 (1st Cir.1997) (concluding that, in the context of a Rule 33 motion, a co-defendant’s post-trial willingness to testify may be “newly discovered” if he had invoked 5th Amendment privilege at trial). But like the district court, we view James St. Louis’s affidavit as lacking in credibility for reasons apparent on its face and from the record. Id. The trial court described James St. Louis’s affidavit as incredible on its face. St. Louis averred that he had conceived, planned, and committed the arson on his own based upon his unverified hope that Awon, who had complained" }, { "docid": "7461302", "title": "", "text": "a downward departure from the applicable guideline sentencing range of 198 to 217 months. Awon was also ordered to pay restitution to the Scottsdale Insurance Company in the amount of $95,788.36. This court affirmed his conviction on February 2, 1998. United States v. Awon, 135 F.3d 96 (1st Cir.1998). B. Post-conviction Proceedings On February 1, 1999, pursuant to 28 U.S.C. § 2255, Awon filed a Motion to Set Aside, Vacate, or Correct Sentence and, in an essentially duplicative pleading, he filed a motion for a new trial. In the two motions, Awon pursued identical claims: (1) that newly-discovered evidence warranted a new trial; and (2) that with respect to Count V of the indictment the government’s evidence at trial was insufficient to satisfy the federal jurisdictional element of 18 U.S.C. § 841© (2000). The newly-discovered evidence was set out in five affidavits. In their affidavits, Jorge Neves and Joaquim Neves recanted their trial testimony implicating Awon in the fires. Joaquim averred that he had falsified his testimony in the hopes of gaining favor with law enforcement officials and avoiding deportation. Jorge disavowed any statement he made on the stand implicating Awon and stated he had fingered Awon to avoid prosecution. James St. Louis, who did not testify at trial, averred that he was solely responsible for the planning of the second fire and that Awon played no part in the arson. Roberto Neves, the brother of Jorge and Joaquim Neves, stated that he and his family were threatened by the police that if Joaquim did not implicate Awon, their sister’s children would be taken away and Roberto would be jailed. Roberto also reported that Joaquim had confessed to Roberto that he, Joaquim, had lied about Awon’s involvement to “save himself” and receive a lower sentence. Roberto did not testify at trial. Finally, Awon submitted his own affidavit denying any involvement in the planning or execution of the fire and averring that James St. Louis had confessed to him that he and Joaquim had set the January 18,1995, fire. The district court held an evidentiary hearing on Awon’s two motions. Through" }, { "docid": "7461313", "title": "", "text": "about the Ames Street property, would “take care of’ him in the future. He further stated that, although unemployed at the time and notoriously short on cash, he had paid Awon $2,000 for the car and paid Joaquim $2,100 for his part in the arson. By the time of his affidavit St. Louis had nothing to lose by exonerating Awon. He had already been convicted and sentenced. He was in a position to say whatever he thought might help Awon, “even to the point of pinning all the guilt on [himself], knowing [he was] safe” from any increased punishment for the transaction. United States v. Montilla-Rivera, 171 F.3d 37, 41 (1st Cir.1999) (quoting United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.1992)). We accept the court’s finding that St. Louis’s affidavit was not credible. Finally, the affidavits of Jorge and Joaquim Neves were discredited by Joaquim’s additional testimony at the evi-dentiary hearing repudiating his own affidavit as well as other considerations. A repudiated recantation is not substantive evidence, and can be used at a new trial only to cross-examine the witness. United States v. Glantz, 884 F.2d 1483, 1486 (1st Cir.1989). The affidavits alone cannot serve to establish Awon’s innocence nor, given that they were later repudiated, are they a credible basis for expecting Jorge and Joaquim to testify differently at a new trial than previously. The district court supportably found that Joaquim’s testimony at the trial, and at the evidentiary hearing recanting his affidavit, was credible. As noted, we review the district court’s factual determinations for clear error. Our deference is even greater where, as here, the factual findings are based on credibility determinations. United States v. Rostoff, 164 F.3d 63, 71 (1st Cir.1999). In such cases, “error is seldom considered ‘clear’ unless the credibility assessments were based on testimony which was inherently implausible, internally inconsistent, or critically impeached.” Keller v. United States, 38 F.3d 16, 25 (1st Cir.1994). Joaquim’s description of the events leading up to the submission of his affidavit was plausible and unrefated. We find no error. Respecting Jorge, the district court found that Jorge’s" }, { "docid": "7461306", "title": "", "text": "district court denied both motions. The court did not consider Roberto Neves’s affidavit to be “newly discovered.” According to the district court, the fact that defense counsel failed to interview Roberto Neves prior to trial did not support a finding that his testimony was unknown or unavailable. Further, it found that Jorge’s affidavit did not support a new trial because the portion of his trial testimony recanted in the affidavit was not critical to the prosecution’s case. Thus, even if it were omitted it was unlikely to result in a different outcome for Awon. As to James St. Louis’ affidavit, which was viewed with “great skepticism,” the court found it incredible on its face. The district court acknowledged that Joaquim’s affidavit was the most supportive of a new trial. At trial, Joaquina had provided the most damning testimony against Awon. In the end, however, it found Joaquim’s testimony at trial, and his testimony at the evi-dentiary hearing recanting his affidavit, credible. Finally, without discussion, the district court stated that it considered Awon’s argument that the government’s evidence was insufficient to meet the jurisdictional element of 18 U.S.C. § 841(i) “unpersuasive.” The district court’s order denying the two motions was filed on July 10, 2000. Awon filed a notice of appeal on August 11, 2000. This court held the appeal in abeyance pending the issuance of a certificate of appealability for an appeal of the denial of a motion under 28 U.S.C. § 2255 as required by 28 U.S.C. § 2253(c)(2). On January 3, 2001, the district court ordered a certificate of appealability. II. Discussion A. Motion for a New Trial Awon faded to file a timely appeal from the denial of his motion for a new trial. Consequently, that appeal must be dismissed. United States v. Rapoport, 159 F.3d 1, 2 (1st Cir.1998) (stating that compliance with time limits set forth in Fed. R.App. P. 4(b) is mandatory and jurisdictional). The new trial motion, brought pursuant to Fed.R.Crim.P. 33, was denied on July 10, 2000, the day the district court also denied Awon’s motion to vacate sentence, brought pursuant to" }, { "docid": "7461304", "title": "", "text": "counsel, Joaquim notified the court that he withdrew his affidavit and recanted the statements he had made therein. Thereafter, at the hearing, the government called Joaquim to testify. During his testimony at the evidentiary hearing, Joaquim described a four and one-half hour meeting with Awon’s attorney that only ended when Joaquim agreed to sign the handwritten affidavit compiled by Awon’s attorney. Joaquim stated that Awon’s attorney informed him that he would not submit the affidavit to the court until Joaquim had signed and returned a typed copy of the affidavit. When Joaquim received the typed copy he discarded it and assumed the matter was closed. He reported being “surprised” when he discovered that Awon’s attorney had filed the handwritten copy. Awon himself did not testify at the hearing on his two motions nor did James St. Louis or Jorge testify concerning the facts they had averred in their affidavits. Roberto, having been deported, was unavailable to testify. Although Awon’s attorney was available to testify, he did not take the stand to counter Joaquim’s description of the events leading to the submission of Joaquim’s affidavit. Awon presented no other testimony or documentary evidence to support his motions. The government submitted an affidavit of Emanuel Gomes, the investigating officer from the Brockton Police Department. Gomes averred that he had neither threatened the Neves family nor had he made promises regarding Joaquim’s or Jorge’s cooperation in the investigation. In addition, the government submitted two reports compiled by Special Agent Thomas Wlodyka (“Wlodyka”) of the Bureau of Alcohol, Tobacco and Firearms. Wlodyka had interviewed both Joaquim and Jorge following the submission of their affidavits in support of Awon’s post-conviction motions. Wlodyka reported that the brothers recanted their affidavits. Jorge stated that Awon’s attorney presented him with an affidavit to sign; that Awon’s attorney told Jorge that the statement was “basically what you said at the trial;” and that he did not review it prior to signing it. Joa-quim’s statement to Wlodyka was consistent with his testimony at the evidentiary hearing. Both men informed Wlodyka their trial testimony was truthful. Following the evidentiary hearing, the" }, { "docid": "6410915", "title": "", "text": "COFFIN, Senior Circuit Judge. Defendant Fred Awon appeals his conviction for arson, use of a fire to commit a felony, and mail fraud. He asserts that the district court erred in: (1) admitting prior consistent statements of two government witnesses; (2) limiting cross-examination of a' witness; (3) refusing to grant a mistrial after improper cross-examination of defendant; and (4) imposing too high a base offense level at sentencing. Most of this opinion deals with the first issue. We fault the government for pressing admission and the court for admitting the evidence, but conclude that the error could not have affected the verdict. We affirm. I. BACKGROUND Defendant was convicted by a jury for twice orchestrating the arson of a building located on Ames Street in Brockton, Massachusetts (“the Ames building”) by hiring James St. Louis, and two brothers, Jorge and Joaquim Neves, to set the fires. The Ames building, owned by defendant and his father, contained vacant retail space on the first floor and two occupied residential apartments on the second floor at the time of both fires. The first fire caused minimal damage; the second required the demolition of the building and two adjacent buildings. We review the evidence presented at trial by defendant and the government. Because defendant does not challenge the sufficiency of the evidence, we describe the relevant evidence without favor to either party to provide context for the claimed errors. See United States v. Morla-Trinidad, 100 F.3d 1, 2 (1st Cir.1996). A. The Neves Brothers Jorge testified that, in mid-1994, St. Louis recruited him to help set fire to the building, stating that they would receive money and a car as payment from defendant, who owned a used car dealership. Jorge admitted to pouring and lighting gasoline on the first floor of the building, at the direction of St. Louis. Firefighters arrived shortly thereafter, preventing damage to the building; as a result, Jorge never received payment from defendant. Jorge’s testimony also revealed that the government agreed not to prosecute him in exchange for his cooperation in court, that for the past six months he had" }, { "docid": "7461314", "title": "", "text": "new trial only to cross-examine the witness. United States v. Glantz, 884 F.2d 1483, 1486 (1st Cir.1989). The affidavits alone cannot serve to establish Awon’s innocence nor, given that they were later repudiated, are they a credible basis for expecting Jorge and Joaquim to testify differently at a new trial than previously. The district court supportably found that Joaquim’s testimony at the trial, and at the evidentiary hearing recanting his affidavit, was credible. As noted, we review the district court’s factual determinations for clear error. Our deference is even greater where, as here, the factual findings are based on credibility determinations. United States v. Rostoff, 164 F.3d 63, 71 (1st Cir.1999). In such cases, “error is seldom considered ‘clear’ unless the credibility assessments were based on testimony which was inherently implausible, internally inconsistent, or critically impeached.” Keller v. United States, 38 F.3d 16, 25 (1st Cir.1994). Joaquim’s description of the events leading up to the submission of his affidavit was plausible and unrefated. We find no error. Respecting Jorge, the district court found that Jorge’s recantation of his trial testimony, even if believed, would not result in Awon’s acquittal. Jorge had testified at trial that James St. Louis had told him that Awon would pay them in cash if they burned down the Ames Street property. Jorge never spoke to Awon directly and because the first fire was unsuccessful Jorge never received payment. The district court concluded that Jorge’s second hand account of Awon’s involvement had a negligible impact on the outcome. The district court’s conclusion is supported by the record. Jorge’s testimony focused almost exclusively on James St. Louis’s involvement in the first fire. His testimony implicated Awon only tangentially. Moreover, given that James St. Louis was acquitted of the charges related to the first fire, it is unclear if Jorge’s testimony had any impact on the trial’s outcome. Awon’s claim that his sentence should be vacated and the case remanded to the district court for a new trial is meritless. 2. Jurisdiction Awon also argues that the district court erred when it refused to vacate his conviction for" }, { "docid": "7461296", "title": "", "text": "LEVIN H. CAMPBELL, Senior Circuit Judge. The petitioner-appellant, Fred Awon (“Awon”) was convicted of arson and mail fraud arising from the orchestration, on two occasions, of the arson of a building and the submission of insurance claims. Following conviction, Awon moved for a new trial and to vacate his sentence pursuant to- 28 U.S.C. § 2255 (2000), citing newly discovered evidence and a lack of federal jurisdiction. The newly discovered evidence contained in five, allegedly exculpatory affidavits. The district court, after holding an evidentiary hearing, denied both motions and, upon Awon’s request, issued a certificate of appealability under 28 U.S.C. § 2253(c). Finding no error, we affirm. I. Background Awon and his father owned rental income property located at 106-108 Ames Street (the “Ames Street property”) in Brockton, Massachusetts, that consisted of unimproved rental space on the first floor and two apartments on the second floor. On September 16, 1994, the Brockton Fire Department extinguished a fire in the vacant first floor space before significant damage occurred. The Awons filed a claim with their insurance company for the damage from this fire and were paid in settlement $4,171 for the damage. In the early morning hours of January 18, 1995, another fire at the building resulted in the destruction not only of the Awon’s building but of three adjacent buildings as well. The Awons again filed a claim with their insurance company and negotiated a settlement of $85,000 for the loss of the building and demolition expenses, and $6,176 for lost rental income. Investigation of the two fires resulted in an eight count indictment charging Awon and two co-defendants, James St. Louis and Joaquim Neves (“Joaquim”) with arson and mail fraud. In Counts I through IV, Awon and James St. Louis were charged with arson, in violation of 18 U.S.C. § 844(i) (2000) (Count I), mail fraud in violation of 18 U.S.C. § 1341 (Counts II and III), and use of a fire to commit a felony, in violation of 18 U.S.C. § 844(h) (Count IV). Those four counts related to the September 16, 1994, fire and the subsequent filing" }, { "docid": "7461312", "title": "", "text": "Roberto’s averments that he and his family were threatened by the police were neutralized by the affidavits of Detective Thomas Enos and Special Agent Thomas Wlodyka. Enos and Wlodyka, the officers primarily responsible for investigating the arson, denied that they had threatened Roberto, or his family, with adverse consequences if they did not implicate Awon. On the other hand, James St. Louis’s averments in his affidavit may indeed be deemed “newly discovered.” United States v. Montillar-Rivera, 115 F.Bd 1060, 1066 (1st Cir.1997) (concluding that, in the context of a Rule 33 motion, a co-defendant’s post-trial willingness to testify may be “newly discovered” if he had invoked 5th Amendment privilege at trial). But like the district court, we view James St. Louis’s affidavit as lacking in credibility for reasons apparent on its face and from the record. Id. The trial court described James St. Louis’s affidavit as incredible on its face. St. Louis averred that he had conceived, planned, and committed the arson on his own based upon his unverified hope that Awon, who had complained about the Ames Street property, would “take care of’ him in the future. He further stated that, although unemployed at the time and notoriously short on cash, he had paid Awon $2,000 for the car and paid Joaquim $2,100 for his part in the arson. By the time of his affidavit St. Louis had nothing to lose by exonerating Awon. He had already been convicted and sentenced. He was in a position to say whatever he thought might help Awon, “even to the point of pinning all the guilt on [himself], knowing [he was] safe” from any increased punishment for the transaction. United States v. Montilla-Rivera, 171 F.3d 37, 41 (1st Cir.1999) (quoting United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.1992)). We accept the court’s finding that St. Louis’s affidavit was not credible. Finally, the affidavits of Jorge and Joaquim Neves were discredited by Joaquim’s additional testimony at the evi-dentiary hearing repudiating his own affidavit as well as other considerations. A repudiated recantation is not substantive evidence, and can be used at a" } ]

[ { "docid": "20063558", "title": "", "text": "replevin actions permits suit “in a county in which a civil action may be brought or in the county in which the property to be replevied is found”, this court has jurisdiction to order the seizure of the boats. 42 Pa.C.S.A. Rule 1072. Plaintiff’s counsel claims that Pennsylvania’s replevin practice and procedure permits the entry of a Pennsylvania judgment, which judgment can then be transferred to New Jersey for enforcement. Upon consideration of the parties’ argu ments, Plaintiffs motion is dismissed for lack of subject matter jurisdiction. DISCUSSION The “local action” doctrine is well settled, and provides that local actions can only be brought where the property involved is located. A “transitory action”, on the other hand, may be brought wherever there exists in personam jurisdiction over the defendant. See 15 Wright, Miller, & Cooper, Federal Practice and Procedure 2d, § 3382. “The true distinction between a local action and a transitory action is the distinction between an action in rem and one in personam. The character of the remedy sought should be determinative.” See Uniroyal Goodrich Tire Co. v. Mun-nis, 1989 WL 89235, 1989 U.S.Dist.Lexis 9170 and citations therein. Further, it is clear that the local action rule speaks to both venue and subject matter jurisdiction, as opposed to only venue. When the action is “local”, and the location of the property is beyond the territorial boundaries of the court, then the issue is one of jurisdiction. The issue is one of venue when the location of the property is within the jurisdictional territory of the court, but suit is filed in the wrong county, i.e. in a county where the property is not located. See Minichiello Realty Associates, Inc. v. Britt, 460 F.Supp. 896, 898-899 (D.N.J.1978), aff'd 605 F.2d 1196 (3rd Cir. 1979); See also In Re School Asbestos Litigation, 921 F.2d 1310, 1318-1319 (3rd Cir. 1990) (since the local action rule is not applicable, court has subject matter jurisdiction). Based on these principles, if Pennsylvania’s writ of seizure in replevin is a local action, then this court is without subject matter jurisdiction to entertain Plaintiffs motion since" } ]

[ { "docid": "21097580", "title": "", "text": "similarly summary explanations for holding that the local action doctrine deprives federal courts of subject matter jurisdiction. See General Electric Capital Corp. v. East Coast Yacht Sales Inc., 757 F.Supp. 19, 21 (E.D.Pa. 1991) (reaching summary conclusion); Rogers v. Clipper Cruise Lines, Inc., 650 F.Supp. 143,146 (D.Colo.1986) (same). Striking a theme similar to that noted in Hayes, the court in Kavouras v. Fernandez, 737 F.Supp. 477 (N.D.I11.1989), claimed that it did not have jurisdiction to hear a local action from another state because it could not interfere with another state’s property recording scheme. In a case involving a pro se complaint for a foreclosure of property in Wisconsin, the District Court for the Northern District of Illinois noted that it had no power over local officials in Wisconsin to order a foreclosure sale. The court further stated that To hold that the limitation is merely one of venue and hence waivable would place this Court in the untenable position of purport ing to affect real estate title records in Wisconsin, purporting to require local officials there (over whom this Court clearly has no jurisdiction) to conduct a foreclosure sale or record its results. Id. at.478. This reasoning is both flawed and inapplicable to the case at bar. This Court can clearly render decisions that “affect” the real estate title records in state court, such as, for example, deciding to set aside a fraudulent conveyance. See Sax v. Sax, 294 F.2d 133, 136-37 (5th Cir.1961); Ely v. Smith, 764 F.Supp. 1413, 1416 (D.Kan.1991). Moreover, the instant case presents no threat that the Court might be required to order a Missouri state official to take some action. Thus, the rationale in Kavouras is unpersuasive, and the concerns about the limitations on the authority of federal courts to act upon the property do not apply to the facts of this case. Finally, a number of older cases dismissed local actions for lack of subject matter jurisdiction. However, as Wright, Miller & Cooper explain, “at least the early cases holding the defect non-waivable can be explained because they came down at a period when" }, { "docid": "21097591", "title": "", "text": "Moore's Federal Practice, § 23.41[3] (citing Pettco Enter, v. White, 162 F.R.D. 151, 155 (M.D.AIa.1995); Fogie v. Rent-A-Center, Inc., 867 F.Supp. 1398, 1403 (D.Minn.1993)). However, other commentators have taken, issue with this position, noting that \"the needs of the judicial system to avoid inconsistent adjudications in a single controversy must be respected, despite the willingness of a litigant to assume the risk.” 1 Newberg and Conte, § 4.07, at p. 4-25. Given the Court's conclusion that this case does not satisfy the Rule 23(b)(1)(A) requirements, it need not resolve this issue. . The only evidence before the Court regarding convej'ances to railroads are those affecting Plaintiff's land. It is worth noting that these conveyances differ in both form and language. . Plaintiff alleges that MCI WorldCom, Inc. is the parent corporation of WNS. . Significantly, Defendants raised the local action doctrine only as a reason to deny class certification and made no suggestion that the local action doctrine deprived the Court of subject matter jurisdiction. . Interestingly, the Fifth Circuit, subsequent to the Hayes decision, observed that \"It is unclear whether the local action doctrine runs to the jurisdiction or the venue of a c'ourt.” Trust Co. Bank v. U.S.Gypsum Co., 950 F.2d 1144, 1149 n. 7 (5th Cir. 1992). It then cited to its own opinion in Hayes and the Seventh Circuit’s opinion in Musicus. Clearly, this footnote undermines any claim that Hayes is dispositive authority on the issue of subject matter jurisdiction. . The Court notes that it has in the past taken actions to adjudicate the ownership interests of real property in another state. For example, in United States v. Terry Wayne Glenn, No. 96-CR-151-2-H, the Court was required to determine the true ownership of certain Missouri real property as a part of a forfeiture claim included in a criminal prosecution by the United States. If the local action doctrine was a rule of subject matter jurisdiction, the government would be forced to bring such an interstate criminal forfeiture action in multiple states, whether or not the ownership of the real property sought to be forfeited was" }, { "docid": "11102662", "title": "", "text": "v. Coca-Cola Co., 239 F.3d 440, 449-450 (2d Cir.2000) (“Under the local action doctrine, courts may not exercise jurisdiction over any ‘local’ action involving real property unless the property at issue is found within the territorial boundaries of the state where the court is sitting.”); In re School Asbestos Litig., 921 F.2d 1310, 1318-1319 (3rd Cir.1990) (finding that as the local action rule does not apply, the court has subject matter jurisdiction); Hayes v. Gulf Oil Corp., 821 F.2d at 291 (“The assertion that an action is local raises more than the court’s venue.”); Van Beek v. Ninkov, 265 F.Supp.2d 1037, 1043 n. 1 (N.D.Iowa 2003) (dismissing action seeking decree conveying property for lack of jurisdiction under local action doctrine); Plant Sys., Inc. v. TE Prods. Pipeline Co., 2001 WL 1175091 at *1 (N.D.Ill. Oct. 3, 2001) (Explaining that if the local action doctrine applies, “it works to deprive a federal court ... of both venue and subject matter jurisdiction over the action.”); Gen. Elec. Capital Corp. v. East Coast Yacht Sales Inc., 757 F.Supp. 19, 20 (E.D.Pa.1991) (“[I]t is clear that the local action rule speaks to both venue and subject matter jurisdiction, as opposed only to venue.”); Kavouras v. Fernandez, 737 F.Supp. 477, 478 (N.D.Ill.1989) (“[Fjederal jurisdiction over local actions involving real property exists only within the territorial boundaries of the state where the land is located.”) (emphasis in the original). The court recognizes that the case law is not uniform on this issue. Leading commentators have suggested that “at least the early cases holding the defect nonwaivable can be explained because they came down during a period when the distinction between jurisdiction and venue was not understood clearly.” 14D Wright, Miller, & Cooper, supra, § 3822. The Fifth Circuit’s decision in Trust Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1149 n. 7 (5th Cir.1992) noted the differing views over whether the doctrine implicates venue or jurisdiction. Other courts have found the doctrine to implicate only venue. See Musicus, 743 F.2d at 506 (“Proper venue is determined by the characterization of the action as either local" }, { "docid": "11102661", "title": "", "text": "107, 15 S.Ct. 771, 39 L.Ed. 913. In Livingston v. Jefferson, 1811, 15 Fed.Cas. page 660, No. 8,411, Marshall, sitting at the Circuit, held that, as a consequence, a federal court had no jurisdiction of such a suit, since Section 11 of the Judicial Code of 1789, 1 Stat. 78, defined the subject matter of the jurisdiction in diversity eases as “suits of a civil nature at common law or in equity.” In the revision of 1948, Section 1332 of 28 U.S.C. changed this language to “all civil actions.” But the Reviser’s Note shows that Congress did not intend, by this verbal change, to enlarge federal jurisdiction. Id. Many other modern courts — at both the Circuit and District levels — have concluded or implied that the doctrine works to limit a court’s jurisdiction. See United States v. Byrne, 291 F.3d 1056, 1060 (9th Cir.2002), cert. denied, 537 U.S. 1088, 123 S.Ct. 700, 154 L.Ed.2d 633 (“The federal district courts’ jurisdiction over actions concerning real property is generally coterminous with the states’ political boundaries.”); Bigio v. Coca-Cola Co., 239 F.3d 440, 449-450 (2d Cir.2000) (“Under the local action doctrine, courts may not exercise jurisdiction over any ‘local’ action involving real property unless the property at issue is found within the territorial boundaries of the state where the court is sitting.”); In re School Asbestos Litig., 921 F.2d 1310, 1318-1319 (3rd Cir.1990) (finding that as the local action rule does not apply, the court has subject matter jurisdiction); Hayes v. Gulf Oil Corp., 821 F.2d at 291 (“The assertion that an action is local raises more than the court’s venue.”); Van Beek v. Ninkov, 265 F.Supp.2d 1037, 1043 n. 1 (N.D.Iowa 2003) (dismissing action seeking decree conveying property for lack of jurisdiction under local action doctrine); Plant Sys., Inc. v. TE Prods. Pipeline Co., 2001 WL 1175091 at *1 (N.D.Ill. Oct. 3, 2001) (Explaining that if the local action doctrine applies, “it works to deprive a federal court ... of both venue and subject matter jurisdiction over the action.”); Gen. Elec. Capital Corp. v. East Coast Yacht Sales Inc., 757 F.Supp." }, { "docid": "21097566", "title": "", "text": "subject matter jurisdiction over the instant case. II “[C]ourts have distinguished between transitory actions and ‘local’ actions, which are in rem actions affecting title to real property.” 17 Moore’s Federal Practice § 110.20[1] (3d ed.). While transitory actions are governed by venue statutes and the law governing personal jurisdiction, a local action can generally be brought only in the state where the property involved in the action is located. See, e.g., Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th Cir.1987); Moore’s, § 110.20[3]. The distinction between transitory and local actions traces its origins to the early common law of England. See, e.g., Keller v. Millice, 838 F.Supp. 1163, 1169 & n. 1 (S.D.Tex.1993); 15 Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure: Civil 2d § 3822 n.l (2d ed.1986). The leading case establishing the distinction in American common law is Livingston v. Jefferson, 15 Fed. Cas. 660 (C.C.D.Va.1811). In Livingston, Chief Justice John Marshall, riding circuit, held that an action against Thomas Jefferson for trespass on land in the Louisiana Territory could not be sustained in a Virginia court because of the local action doctrine. Justice Marshall adopted the settled common law of England that an action for trespass was a local one which could be maintained only in the state or territory where the property at issue was located. Despite some criticism, see Keller, 838 F.Supp. at 1170 & n. 3, the local action doctrine remains a viable legal principle today. See Trust Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1148 (5th Cir.1992); Raphael J. Musicus, Inc. v. Safeway Stores, Inc., 743 F.2d 503, 506-07 (7th Cir.1984). As an initial matter, the Court must determine whether Plaintiffs claims are transitory or local in nature. In diversity suits, some courts have applied the law of the forum state to the transitory/local question, while others have considered the question one of federal procedure and applied federal law. See Wright, Miller & Cooper, § 3822 at p. 207-09 (citing cases). The Court finds that the better approach, adopted by Justice Marshall in" }, { "docid": "23394082", "title": "", "text": "F.2d at 287; Humble Oil & Refining Co. v. Copeland, 398 F.2d 364, 367 & n. 5 (4th Cir.1968); Miller v. Miller, 715 S.W.2d 786, 788 (Tex.App.—Austin 1986, writ ref’d n.r.e.); Laslie v. Gragg Lumber Co., 184 Ga. 794, 193 S.E. 763, 765 (1937). Only a handful of jurisdictions have rejected the local action doctrine. See, e.g., Reasor-Hill Corp. v. Harrison, 220 Ark. 521, 249 S.W.2d 994, 995-96 (1952); Holmes v. Barclay, 4 La.Ann. 63 (1849); St. Louis Smelting & Refining Co. v. Hoban, 357 Mo. 436, 209 S.W.2d 119, 123-24 (1948). Significantly, however, Mississippi is one of the jurisdictions which has rejected the common law local action doctrine. See Archibald v. Mississippi & T.R. Co., 66 Miss. 424, 6 So. 238, 238-39 (1889) (“The common law distinction between local and transitory actions does not exist here.”). Trust argues that Mississippi law should determine whether the local action doctrine applies in this case. If this Court treated the local action doctrine in the same manner it treats other matters of jurisdiction and venue, then this argument would be incorrect. Federal law, not state law, usually controls the outcome of subject matter jurisdiction and venue disputes in federal court. See 15 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters 2d § 3822, at 207 & n. 22 (1986). This Court, however, has maintained a questionable distinction between the local action doctrine and other matters of federal jurisdiction and venue. In Chateau Lafayette Apartments, Inc. v. Meadow Brook National Bank, 416 F.2d 301 (5th Cir.1969), the Court reasoned that “the law of the forum state”—not federal law—determines whether the local action doctrine applies. Id. at 304 n. 7. With some misgivings, the Court reaffirmed this reasoning in its more recent opinion in Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th Cir.1987). The use of state law to determine whether a federal court can resolve a local action is difficult to support. The local action doctrine is “intimately related to federal jurisdiction and venue,” and should not be subject to different choice of law rules. Note, Local" }, { "docid": "21097575", "title": "", "text": "L.Ed. 167 (1939). A federal district court in the same state and district as the real property at issue clearly has jurisdiction to hear a local action. See 28 U.S.C. § 1392 (“Any civil action, of a local nature, involving property located in different districts in the same State, may be brought in any of such districts.”) Yet, under the approach urged by Defendants, a federal district court in another state would not have the same jurisdiction. General federal court subject matter jurisdiction must be the same, regardless of the district. Therefore, all federal district courts must have the same jurisdiction to hear local actions. See Moore’s, § 110.20[5]. Second, the local action doctrine is best characterized as a rule of convenience which, like personal jurisdiction and venue, can be waived if not contested in the first response to the complaint. Venue primarily seeks to establish a convenient forum for the parties and witnesses. See Leroy v. Great W. United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979). One court, in defending the viability of the local action doctrine, stated that the local action rule “ensure[s] that real property actions will be tried in a convenient forum and that orderly notice to all interested parties — through [state] land title records — will be facilitated.” Hayes v. Gulf Oil Corp., 821 F.2d 285, 290 (5th Cir.1987). This provides a strong justification for venue, which is, after all, concerned primarily with convenience. Additionally, the local action doctrine is clearly equated with in rem actions. See, e.g., Musicus, 743 F.2d at 506. As noted by one treatise, “[t]o the extent that the local action rule parallels the distinction between in rem and in personam jurisdiction, it too should be treated at most as a personal jurisdiction defect, which, like venue objections, is waivable if not raised in the first response to the complaint.” Moore’s, § 110.20[5]. Third, the federal venue statutes mention local actions, strongly suggesting that Congress intended for local actions to be addressed through venue laws. 28 U.S.C. § 1392 applies to actions “of a local" }, { "docid": "21097577", "title": "", "text": "nature,” and 28 U.S.C. § 1391 establishes the situs of property that is the subject of an action as a grounds for venue. The Court “presume[s] that Congress is knowledgeable about exist ing law pertinent to the legislation it enacts.” Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988), and the Court therefore presumes that Congress sought to clarify that the local action doctrine was a rule of venue when it drafted the venue statutes. Notably, the statutes governing subject matter jurisdiction make no mention of local actions, despite the fact that the local action doctrine has existed in this country for almost two hundred years. The inclusion of local actions in venue statutes and the exclusion of local actions from the subject matter jurisdiction statutes reflects that Congress knows how to address local actions when it so chooses. See, e.g., Fischer Imaging Corp. v. General Electric Co., 187 F.3d 1165, 1173 n. 8 (10th Cir.1999); United States v. Oberle, 136 F.3d 1414, 1423-24 (10th Cir.), cert. denied, 525 U.S. 885, 119 S.Ct. 197, 142 L.Ed.2d 161 (1998). Congress chose to characterize local actions in venue provisions only. In contrast, cases that find the local action doctrine is a rule of subject matter jurisdiction provide no persuasive reasons for this conclusion. For example, in Hayes v. Gulf Oil Corp., 821 F.2d 285, 290 (5th Cir.1987), the court carefully explained the importance of the local action rule, stating: The rationale for the rule is as forceful today as it was in Chief Justice Marshall’s time____ If litigants were free to file claims to the same Colorado real property in different federal and state courts throughout the country, the State of Colorado could not give conflicting judgments full faith and credit. More significantly, title to real estate would never be certain again since it could be involved in unknown claims in unknown fora with no practical method for control of liens, lis pendens or priority of title claims. State land title records would become unmanageable. The local action rule prevents courts unfamiliar with local property" }, { "docid": "12295200", "title": "", "text": "a local action must be brought in the state where the real property is located. See, e.g., Iselin v. Meng, 269 F.2d 345, 347 (5th Cir.), cert. denied, 361 U.S. 913, 80 S.Ct. 257, 4 L.Ed. 183 (1959); Shell Petroleum Corp. v. Moore, 46 F.2d 959, 961 (5th Cir.1931). Other federal courts have recognized and applied the rule. See, e.g., Humble Oil & Refining Co. v. Copeland, 398 F.2d 364, 367 & n. 5 (4th Cir.1968); Still v. Rossville Crushed Stone Co., 370 F.2d 324, 325 (6th Cir.1966), cert. denied, 387 U.S. 918, 87 S.Ct. 2030, 18 L.Ed.2d 970 (1967); Minichiello Realty Associates, Inc. v. Britt, 460 F.Supp. 896, 897-99 (D.N.J.1978), aff'd without opinion, 605 F.2d 1196 (3d Cir. 1979); Central Transport, Inc. v. Theurer, Inc., 430 F.Supp. 1076, 1078-79 (E.D.Mich. 1977). State courts, including those of Texas and Colorado, refuse to entertain actions involving land located outside state boundaries. See, e.g., Miller v. Miller, 715 S.W.2d 786, 788 (Tex.Ct.App.1986) (citing Holt v. Guerguin, 106 Tex. 185, 163 S.W. 10 (1914)); Flader v. Campbell, 120 Colo. 66, 207 P.2d 1188 (1949). The local action rule is so fundamental that state courts are not obligated to give full faith and credit to judgments from either federal or state courts sitting outside the local state’s territorial boundaries. See Iselin, 269 F.2d at 347 (Louisiana federal court’s judgment involving land situated in Mississippi is void and not res judicata in courts in Mississippi); Humble Oil, 398 F.2d at 367 (Texas courts have exclusive jurisdiction to determine title to realty in Texas; a South Carolina court decision would receive no full faith and credit in Texas courts). See also Clarke v. Clarke, 178 U.S. 186, 190, 20 S.Ct. 873, 876, 44 L.Ed. 1028 (1900) (Connecticut courts are not required to give full faith and credit to a judgment of the South Carolina Supreme Court concerning the construction of a will which affected the passing of title to land situated in Connecticut). What is explicit or implicit in all of these decisions is that federal and state courts lack jurisdiction over the subject matter of" }, { "docid": "12295215", "title": "", "text": "district court should have dismissed an action adjudicating title to land in Mississippi “for lack of jurisdiction over the subject matter” of the lawsuit. Id. at 347. The assertion that an action is loeal raises more than the court’s venue. Hayes argues that Shaffer’s rejection of territoriality as the controlling concept of state court jurisdiction should persuade us that state boundaries relate only to venue. Our rejection of Hayes’ argument that Shaffer abrogates the local action doctrine also answers this assertion. Hayes cites cases from other courts as precedent for treating the local action issue as a question of venue. None of the cases have confronted the issue we confront here. For example, in X-Rail Systems, Inc. v. Norfolk and W. Ry., 485 F.Supp. 553 (D.N.J.1980), a federal district court in New Jersey was confronted with a lawsuit involving the termination of a lease to land in Illinois. The court transferred the case to the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a) and § 1406(a), the federal venue statutes. See id. at 555. In granting the defendant’s motion to transfer the case under the venue statutes, the New Jersey federal district court did not consider whether it had jurisdiction over the subject matter of the dispute. III. Conclusion By invoking the jurisdiction of the United States District Court for the Eastern District of Texas, Hayes seeks to have himself declared the owner of an oil and gas lease covering land located in Colorado. The local action doctrine, however, is alive and well in post-Shaffer jurisprudence. Accordingly, that suit must be litigated, if anywhere, in a court in Colorado of competent jurisdiction. Accordingly, we remand this case and direct the district court to dismiss Hayes’ action or to transfer the action to the proper United States District Court in Colorado pursuant to 28 U.S.C. § 1631. REVERSED and REMANDED. . Transfer to cure want of jurisdiction Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice," }, { "docid": "21097581", "title": "", "text": "there (over whom this Court clearly has no jurisdiction) to conduct a foreclosure sale or record its results. Id. at.478. This reasoning is both flawed and inapplicable to the case at bar. This Court can clearly render decisions that “affect” the real estate title records in state court, such as, for example, deciding to set aside a fraudulent conveyance. See Sax v. Sax, 294 F.2d 133, 136-37 (5th Cir.1961); Ely v. Smith, 764 F.Supp. 1413, 1416 (D.Kan.1991). Moreover, the instant case presents no threat that the Court might be required to order a Missouri state official to take some action. Thus, the rationale in Kavouras is unpersuasive, and the concerns about the limitations on the authority of federal courts to act upon the property do not apply to the facts of this case. Finally, a number of older cases dismissed local actions for lack of subject matter jurisdiction. However, as Wright, Miller & Cooper explain, “at least the early cases holding the defect non-waivable can be explained because they came down at a period when the distinction between jurisdiction and venue was not clearly understood.” Wright, Miller & Cooper, § 3822, at p. 207 (footnotes omitted). The treatise notes that the Supreme Court did not clearly establish until 1923 that venue defects, in contrast to subject matter jurisdiction defects, are waivable. See id. at p. 207 n. 21. Prior to that time (and occasionally since then), courts confused or failed to distinguish between the concepts. See id. at § 3801. In sum, the Court finds that the better approach is to treat the local action doctrine as a rule of venue. As such, it is waivable. In this case, Defendants answered Plaintiffs amended complaint and failed to raise venue in the answer. To the contrary, Defendants admitted venue in their answer. Thus, Defendants have waived any objection to venue. See Fed.R.Civ.P. 12(h)(1). Based on the above, the Court finds that it has subject matter jurisdiction over this case. Accordingly, Plaintiffs motion to vacate the Court’s Order of March 31, 2000 (Docket # 110) is hereby denied, and Defendants’ suggestion that" }, { "docid": "12295213", "title": "", "text": "country, the State of Colorado could not give conflicting judgments full faith and credit. More significantly, title to real estate would never be certain again since it could be involved in unknown claims in unknown fora with no practical method for control of liens, lis pendens or priority of title claims. State land title records would become unmanageable. The local action rule prevents courts unfamiliar with local property rights and laws from interfering with title to real property which must be recorded under a unitary set of rules to keep it free of conflicting encumbrances. These local rules ensure that real property actions will be tried in a convenient forum and that orderly notice to all interested parties— through Colorado land title records — will be facilitated. In short, overwhelming precedent, including cases from this Circuit, which hold that a court sitting in one state cannot adjudicate title to land situated in a different state, and numerous salutory reasons for continuing the local action rule to determine subject matter jurisdiction compel reversal of the district court’s judgment. C. Venue or Jurisdiction? Hayes contends in the alternative that the local action doctrine relates only to venue and not to a court’s subject matter jurisdiction. This distinction is significant in the case at bar because a defect in venue must be raised by timely motion or by pleading by the objecting party. See Fed.R.Civ.P. 12(h)(1). A defect in the district court’s subject matter jurisdiction, on the other hand, may be raised at ary time by the parties or the court itself and cannot be waived. See Fed.R.Civ.P. 12(h)(3). Hayes submits that Gulf did not raise a defense of improper venue in its first pleading or in a pre-pleading motion as required by Rule 12(h)(1). We need not belabor this issue of procedural waiver since we are bound by Circuit precedent to hold that a federal district court sitting in Texas does not have subject matter jurisdiction over Hayes’ claim of title to the federal oil and gas lease. See Iselin, 269 F.2d 345. In Iselin, this court held that a Louisiana federal" }, { "docid": "13736508", "title": "", "text": "Timco Engineering, Inc. v. Rex & Co. Inc., 603 F.Supp. 925, 929-30 (E.D.Penn.1985); K & H Business Consultants Ltd. v. Cheltonian, 567 F.Supp. 420, 423 (D.N.J.1983); Goar v. Compania, 688 F.2d 417, 420 n. 6 (5th Cir.1982). The Court is satisfied that there is a legitimate dispute between the American parties, Central (as Clark’s principal) and Yellow Freight, and thus that diversity jurisdiction exists under 28 U.S.C. § 1332(a)(3). The issue of whether Clark was a party to the contract and whether Clark is a real party in interest is not relevant to a determination of the existence of subject matter jurisdiction under § 1332(a)(3). II. Venue A. “State Law Venue” Provisions Defendant’s next argument is that venue is improper in this district because the present action is a local action or an action in rem, governed by state substantive law. Defendant further argues that, under Michigan law, an in rem action must be brought in the district where the property is located. See, e.g., Central Transport, Inc. v. Theurer, 430 F.Supp. 1076, 1078-79 (E.D.Mich.1979). Courts disagree regarding whether state or federal law is applied to determine whether an action is local or transitory. Hayes v. Gulf Oil Corp., 821 F.2d 285, 287-88 (5th Cir.1987); Centennial Petroleum, Inc. v. Carter, 529 F.Supp. 563, 565 (D.Colo.1982); Raphael J. Musicus, Inc. v. Safeway Stores, Inc., 743 F.2d 503, 506. In addition, courts disagree regarding whether the issue is one of venue or subject matter jurisdiction. Hayes at 291. See also Wright, Miller & Cooper, Federal Practice & Procedure, § 3822, p. 206-07 and n. 21. It is unnecessary for this Court to weigh the merits of the opposing views on these issues, however. The Sixth Circuit, framing the issue as one of venue, rather than jurisdiction, has held that suits for specific performance of a contract to convey land (such as the present suit) are transitory actions, or actions in personam, which may be brought in any district where the defendant can be found. Dan Cohen Realty Co. v. National Savings & Trust Co., 125 F.2d 288 (6th Cir.1942). The Court recognizes" }, { "docid": "11102663", "title": "", "text": "19, 20 (E.D.Pa.1991) (“[I]t is clear that the local action rule speaks to both venue and subject matter jurisdiction, as opposed only to venue.”); Kavouras v. Fernandez, 737 F.Supp. 477, 478 (N.D.Ill.1989) (“[Fjederal jurisdiction over local actions involving real property exists only within the territorial boundaries of the state where the land is located.”) (emphasis in the original). The court recognizes that the case law is not uniform on this issue. Leading commentators have suggested that “at least the early cases holding the defect nonwaivable can be explained because they came down during a period when the distinction between jurisdiction and venue was not understood clearly.” 14D Wright, Miller, & Cooper, supra, § 3822. The Fifth Circuit’s decision in Trust Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1149 n. 7 (5th Cir.1992) noted the differing views over whether the doctrine implicates venue or jurisdiction. Other courts have found the doctrine to implicate only venue. See Musicus, 743 F.2d at 506 (“Proper venue is determined by the characterization of the action as either local or transitory ...”); Hallaba, 196 F.R.D. at 646-48 (same); Fisher, 243 F.Supp.2d at 551 n. 10 (same). Nonetheless, after careful consideration, the court determines that the doctrine impacts jurisdiction rather than venue. The Supreme Court has repeatedly recognized that exclusive jurisdiction over title to real property is vested in the courts of the state in which the property at issue is located. See, e.g., Durfee v. Duke, 375 U.S. 106, 115, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963) (noting the Court’s “emphatic expressions of the doctrine that courts of one State are completely without jurisdiction directly to affect title to land in other States.”); Underwriters Nat. Assur. Co. v. North Carolina Life and Acc. and Health Ins. Guaranty Ass’n, 455 U.S. 691, 706 n. 11, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982) (noting the “exclusive jurisdiction each State has to control the administration of real property within its borders”). See also Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1522 (C.A.D.C.1984) (Scalia, J.) (“the local action rule ... makes the locality’s power exclusive" }, { "docid": "21097579", "title": "", "text": "rights and laws from interfering with title to real property which must be recorded under a unitary set of rules to keep it free of conflicting encumbrances. Id. at 290. However, these justifications for the rule do not explain why it deprives federal courts of subject matter jurisdiction. Liens and ownership interests would still have to be filed in the state where the property is located to be effective, regardless of where the claim is litigated. Certainly, a court in a different state may order the parties to make such filings. Significantly, when faced with the question of venue or subject matter jurisdiction, the Hayes court simply claimed to be bound by precedent, citing Iselin v. Meng, 269 F.2d 345 (5th Cir.1959). See Hayes, 821 F.2d at 291. Iselin, in turn, stated without explanation that a Louisiana federal court would not have subject matter jurisdiction over a suit involving a property in Mississippi. See 269 F.2d at 347. Thus, the Hayes opinion provides no substantive basis for its conclusion on this issue. Other opinions include similarly summary explanations for holding that the local action doctrine deprives federal courts of subject matter jurisdiction. See General Electric Capital Corp. v. East Coast Yacht Sales Inc., 757 F.Supp. 19, 21 (E.D.Pa. 1991) (reaching summary conclusion); Rogers v. Clipper Cruise Lines, Inc., 650 F.Supp. 143,146 (D.Colo.1986) (same). Striking a theme similar to that noted in Hayes, the court in Kavouras v. Fernandez, 737 F.Supp. 477 (N.D.I11.1989), claimed that it did not have jurisdiction to hear a local action from another state because it could not interfere with another state’s property recording scheme. In a case involving a pro se complaint for a foreclosure of property in Wisconsin, the District Court for the Northern District of Illinois noted that it had no power over local officials in Wisconsin to order a foreclosure sale. The court further stated that To hold that the limitation is merely one of venue and hence waivable would place this Court in the untenable position of purport ing to affect real estate title records in Wisconsin, purporting to require local officials" }, { "docid": "12494310", "title": "", "text": "is a matter of federal rather than state law. That view harks back to the decision of Chief Justice John Marshall, sitting on Circuit in the famous case of Livingston v. Jefferson, 15 F. Cas. 660, 665 (C.C.D.Va.1811) (No. 8411). Even though that is the clear thrust of Chief Justice Marshall’s statement in Livingston, a misreading of his opinion in a later Supreme Court (!) dictum, Huntington v. Attrill, 146 U.S. 657, 669-70, 13 S.Ct. 224, 228-29, 36 L.Ed. 1123 (1892) has caused a number of courts to look to state law instead (see the discussion of this subject in Hayes, 821 F.2d at 287-88). But as already stated, that makes not the slightest difference here. Even if this Court were required to look to the law of the forum in determining jurisdiction, the result would be identical. It has been established law in Illinois for nearly a century and a half that an action pertaining to lands that is “local” (in the legal sense) in its nature must be brought within the jurisdiction where the lands lie (Eachus v. Trustees of Illinois & Michigan Canal, 17 Ill. 534 (1856), citing {id. at 536), among numerous other authorities, Chief Justice Marshall’s opinion in Livingston; accord, United Biscuit Co. of America v. Voss Truck Lines, Inc., 407 Ill. 488, 502, 95 N.E.2d 439, 446 (1950)). Accordingly this Court lacks subject matter jurisdiction over Kavouras’ action to foreclose her mortgage on Wisconsin real estate. Both the Complaint and this action are dismissed for that reason. . This Court always undertakes an immediate review of newly-filed complaints; see Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280, 1282 (7th Cir.1986): The first thing a federal judge should do when a complaint is filed is check to see that federal jurisdiction is properly alleged. . All further references to Title 28’s provisions will simply take the form \"Section — .” . In signing the Complaint, Kavouras lists her address as 5970 South Archer, Chicago, Illinois 60638. But that presumably identifies her residence, and residence is of course not necessarily synonymous with citizenship (the" }, { "docid": "12494309", "title": "", "text": "of the state where the land is located (Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th Cir.1987)). Even though Wright, Miller and Cooper, id. at 206 says “[i]t is not clear whether the distinction between local and transitory actions runs to the jurisdiction or the venue of the federal court,” this Court agrees with Hayes, 821 F.2d at 290-91 that the limitation is truly jurisdictional. To hold, that the limitation is merely one of venue and hence waivable would place this Court in the untenable position of purporting to affect real estate title records in Wisconsin, purporting to require local officials there (over whom this Court clearly has no jurisdiction) to conduct a foreclosure sale or record its results — and it is scarcely necessary to extend the list of intolerable consequences. Although the choice makes no difference in the ultimate result, this Court has (as suggested by 15 Wright, Miller & Cooper § 3822, at 207 & n. 22) proceeded on the basis that characterization of an action as local or transitory is a matter of federal rather than state law. That view harks back to the decision of Chief Justice John Marshall, sitting on Circuit in the famous case of Livingston v. Jefferson, 15 F. Cas. 660, 665 (C.C.D.Va.1811) (No. 8411). Even though that is the clear thrust of Chief Justice Marshall’s statement in Livingston, a misreading of his opinion in a later Supreme Court (!) dictum, Huntington v. Attrill, 146 U.S. 657, 669-70, 13 S.Ct. 224, 228-29, 36 L.Ed. 1123 (1892) has caused a number of courts to look to state law instead (see the discussion of this subject in Hayes, 821 F.2d at 287-88). But as already stated, that makes not the slightest difference here. Even if this Court were required to look to the law of the forum in determining jurisdiction, the result would be identical. It has been established law in Illinois for nearly a century and a half that an action pertaining to lands that is “local” (in the legal sense) in its nature must be brought within the jurisdiction where" }, { "docid": "21097578", "title": "", "text": "525 U.S. 885, 119 S.Ct. 197, 142 L.Ed.2d 161 (1998). Congress chose to characterize local actions in venue provisions only. In contrast, cases that find the local action doctrine is a rule of subject matter jurisdiction provide no persuasive reasons for this conclusion. For example, in Hayes v. Gulf Oil Corp., 821 F.2d 285, 290 (5th Cir.1987), the court carefully explained the importance of the local action rule, stating: The rationale for the rule is as forceful today as it was in Chief Justice Marshall’s time____ If litigants were free to file claims to the same Colorado real property in different federal and state courts throughout the country, the State of Colorado could not give conflicting judgments full faith and credit. More significantly, title to real estate would never be certain again since it could be involved in unknown claims in unknown fora with no practical method for control of liens, lis pendens or priority of title claims. State land title records would become unmanageable. The local action rule prevents courts unfamiliar with local property rights and laws from interfering with title to real property which must be recorded under a unitary set of rules to keep it free of conflicting encumbrances. Id. at 290. However, these justifications for the rule do not explain why it deprives federal courts of subject matter jurisdiction. Liens and ownership interests would still have to be filed in the state where the property is located to be effective, regardless of where the claim is litigated. Certainly, a court in a different state may order the parties to make such filings. Significantly, when faced with the question of venue or subject matter jurisdiction, the Hayes court simply claimed to be bound by precedent, citing Iselin v. Meng, 269 F.2d 345 (5th Cir.1959). See Hayes, 821 F.2d at 291. Iselin, in turn, stated without explanation that a Louisiana federal court would not have subject matter jurisdiction over a suit involving a property in Mississippi. See 269 F.2d at 347. Thus, the Hayes opinion provides no substantive basis for its conclusion on this issue. Other opinions include" }, { "docid": "12494308", "title": "", "text": "Procedure: Civil § 3611, at 516-18 & nn. 27-29, and cases there cited (1984 ed. and 1989 pocket part). Federal jurisdiction cannot be based on surmise or guesswork. Ordinarily this Court, when confronted with what might be perceived as an inadvertent and likely curable defect of this nature, will dismiss the complaint (as it must do) but will simultaneously grant leave to file an amendment to cure the defect within a reasonable time (see Section 1653). In this case, however, still another fundamental jurisdictional problem counsels outright dismissal without such an opportunity to cure. Complaint If 4(1) and (J) disclose the mortgaged property is in Ladysmith, Rusk County, Wisconsin. It has long been understood that mortgage foreclosure actions are classic examples of what have historically been characterized as “local” as contrasted with “transitory” actions (15 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3822, at 209 & n. 29 (2d ed. 1986) and cases cited there) — and federal jurisdiction over local actions involving real property exists only within the territorial boundaries of the state where the land is located (Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th Cir.1987)). Even though Wright, Miller and Cooper, id. at 206 says “[i]t is not clear whether the distinction between local and transitory actions runs to the jurisdiction or the venue of the federal court,” this Court agrees with Hayes, 821 F.2d at 290-91 that the limitation is truly jurisdictional. To hold, that the limitation is merely one of venue and hence waivable would place this Court in the untenable position of purporting to affect real estate title records in Wisconsin, purporting to require local officials there (over whom this Court clearly has no jurisdiction) to conduct a foreclosure sale or record its results — and it is scarcely necessary to extend the list of intolerable consequences. Although the choice makes no difference in the ultimate result, this Court has (as suggested by 15 Wright, Miller & Cooper § 3822, at 207 & n. 22) proceeded on the basis that characterization of an action as local or transitory" }, { "docid": "12295214", "title": "", "text": "court’s judgment. C. Venue or Jurisdiction? Hayes contends in the alternative that the local action doctrine relates only to venue and not to a court’s subject matter jurisdiction. This distinction is significant in the case at bar because a defect in venue must be raised by timely motion or by pleading by the objecting party. See Fed.R.Civ.P. 12(h)(1). A defect in the district court’s subject matter jurisdiction, on the other hand, may be raised at ary time by the parties or the court itself and cannot be waived. See Fed.R.Civ.P. 12(h)(3). Hayes submits that Gulf did not raise a defense of improper venue in its first pleading or in a pre-pleading motion as required by Rule 12(h)(1). We need not belabor this issue of procedural waiver since we are bound by Circuit precedent to hold that a federal district court sitting in Texas does not have subject matter jurisdiction over Hayes’ claim of title to the federal oil and gas lease. See Iselin, 269 F.2d 345. In Iselin, this court held that a Louisiana federal district court should have dismissed an action adjudicating title to land in Mississippi “for lack of jurisdiction over the subject matter” of the lawsuit. Id. at 347. The assertion that an action is loeal raises more than the court’s venue. Hayes argues that Shaffer’s rejection of territoriality as the controlling concept of state court jurisdiction should persuade us that state boundaries relate only to venue. Our rejection of Hayes’ argument that Shaffer abrogates the local action doctrine also answers this assertion. Hayes cites cases from other courts as precedent for treating the local action issue as a question of venue. None of the cases have confronted the issue we confront here. For example, in X-Rail Systems, Inc. v. Norfolk and W. Ry., 485 F.Supp. 553 (D.N.J.1980), a federal district court in New Jersey was confronted with a lawsuit involving the termination of a lease to land in Illinois. The court transferred the case to the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a) and § 1406(a), the federal venue statutes. See id. at" } ]

[ { "docid": "22735173", "title": "", "text": "when the offence was committed. It is not necessary to review the numerous cases in which the courts have determined whether particular statutes come within the constitutional prohibition of ex post facto laws. It is sufficient now to say that a statute belongs to that class which by its necessary operation and “ in its relation to the offence, or its consequences, alters the situation of the accused to his disadvantage.” United States v. Hall, 2 Wash. C. C. 366; Kring v. Missouri, 107 U. S. 221, 228; Medley, Petitioner, 134 U. S. 160, 171. Of course, a statute is not of that .class unless it materially impairs the right of the'\"accused to have the question of .his guilt determined according to the law as it was when the offence was committed. And, therefore, it is well settled that the accused is not entitled of right' to be tried in the exact mode,- in all respects, that may be prescribed for the trial of criminal cases at the time of the' commission of .the offence charged against him. Cooley in his Treatise on Constitutional Limitations^ after referring to some of the adjudged cases relating to ex post facto laws, says: “But so far as mere modes of procedure are concerned, a party nas no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the • law in .force when the act to be investigated is charged to have taken place. Bemedies' must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in ex istence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused.of crime.” c. 9, 6th ed. p." } ]

[ { "docid": "22062020", "title": "", "text": "pass an ■ex post facto law. The scope and meaning of the ex post facto clause of the •Constitution was determined in Calder v. Bull, 3 Dall. 386, the opinion being delivered by Mr. J ustice Chase. The classification there made of cases embraced by that provision has been universally accepted in the courts of this country, although this court said in Kring v. Missouri, 107 U. S. 221, 228, that it was not to be supposed that the opinion in Calder v. Bull undertook to define, by way of exclusion, all the cases •to which the constitutional provision would be applicable. That classification was as follows : “ 1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2. Every law that aggravates a crime and makes it greater than it was when committed. 3. Every law that changes the punishment, and inflicts a greater . punishment than the law annexed to the crime when committed. 4. Every law that’alters the legal rules of evidence and receives less or different testimony than the law required at the commission of the offence- in order to convict the offender.” - In United States v. Hall, 2 Wash. C. C. 366, Mr. Justice Washington said “ that an ex post faeto law is one which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, .in short, which in relation to the\" offence, or its consequences, alters the situation of a party to his disadvantages And so it was held in Kring v. Missouri, 107 U. S. 221, 228, and in Medley, Petitioner, 131 U. S. 160, 171. If) long after the commission of a crime, and long after the-offender has suffered all the punishment prescribed at the time-for its commission, a statute should, by its Own force, and solely because of Ms, conviction of that offence, take from him the right to further pursue his profession, would not such a statute inflict- upon" }, { "docid": "23138382", "title": "", "text": "this argument, he relies on Weaver v. Graham, which defined the ex post facto prohibition as barring Congress and the states from enacting “any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 4 Wall. 277, 325-26, 18 L.Ed. 356 (1866)). Mr. Hinckley further relies upon Colder v. Bull, which prohibits under the Ex Post Facto Clause any law that criminalizes any action “innocent when done” or increases the punishment of a crime beyond the penalty in place at the time the crime was committed. Collins v. Youngblood, 491 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (quoting Colder, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798)). Two elements must be satisfied to find that a law violates the Ex Post Facto Clause: (1) “it must be retrospective, that is, it must apply to events occurring before its enactment,” and (2) “it must disadvan tage the offender affected by it.” Weaver, 450 U.S. at 29, 101 S.Ct. 960 (citing Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Colder v. Bull, 3 U.S. at 390). In other words, Mr. Hinckley claims that (1) he is now being punished for conduct that occurred in 2004, which did not become a crime until 2006, and (2) the only laws in effect at the time of his offense were Oklahoma state statutes and the Jacob Wetterling Act, 42 U.S.C. § 14071, which carried lesser penalties than SORNA. The district court did not address whether SORNA violates the Ex Post Fac-to Clause; however, we agree with the reasoning of the May court and hold that neither SORNA’s registration requirements nor the criminal penalties attached to non-compliance in § 2250 violate the Ex Post Facto Clause. Relying on Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), as the government does, we find that the legislative intent expressed" }, { "docid": "11878286", "title": "", "text": "at 3 years.-4 months. Love v. Fitzharris, 311 F.Supp. 702 (N.D.Cal.1970). The State appeals. A law is ex post facto if it either “makes an action done before the passing of .the law, and which was innocent when done, criminal * * * [or] aggravates a crime * * * [or] changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed * * * ” Calder v. Bull, 3 U.S. (3 Dall) 386, 390, 1 L.Ed. 648 (1798). In Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), the Supreme Court held that a state statute which in effect increased the punishment for a crime committed prior to its enactment could not, under the ex post facto clause, be applied retroactively. See also, Greenfield v. Scafati, 277 F.Supp. 644 (D.Mass.1967, 3-judge court), aff’d per curiam, 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968). Under California law, a convicted person’s eligibility for parole consideration (as opposed to parole) is part of the “law annexed to the crime when committed” within the meaning of Calder v. Bull, supra, and any legislative change in such eligibility which would work to a prisoner’s disadvantage may not be retroactively applied. In re Griffin, 63 Cal.2d 757, 48 Cal.Rptr. 183, 408 P.2d 959 (1965). The issue in this case is whether such a change in parole eligibility brought about, not by legislative action, but by administrative fiat, is within the ex post facto prohibition. The Department of Corrections relies on this court’s decision in In re Costello, 262 F.2d 214 (9th Cir. 1958). In Costello we held that no federal question was presented in cases where the Adult Authority, having initially fixed the term of imprisonment under the California indeterminate sentence law, thereafter increased the term upon cause shown. However, there we rested decision on the fact that the California courts had consistently held that an indeterminate sentence under California law was in substance a sentence for the maximum term provided for the offense, and that any term set by the Adult Authority" }, { "docid": "23653238", "title": "", "text": "57-71 months. See U.S. Sentencing Guidelines Manual § 4A1.3 (2001). The District Court imposed a sentence of 57 months imprisonment. Lennon timely appealed and maintains that the District Court violated her rights under the Constitution’s Ex Post Facto clause. We exercise plenary review over the District Court’s interpretation of the Sentencing Guidelines and constitutional questions. See United States v. Cicirello, 301 F.3d 135, 137 (3d Cir.2002); United States v. Spinello, 265 F.3d 150, 153 (3d Cir.2001); United States v. Figueroa, 105 F.3d 874, 875-76 (3d Cir.1997). We review the District Court’s factual findings for clear error, see Cicirello, 301 F.3d at 137, and the District Court’s application of those facts to the Guidelines for an abuse of discretion. See Buford v. United States, 532 U.S. 59, 62-66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001); United States v. Zats, 298 F.3d 182, 185 (3d Cir.2002). In this context, we consider each of Lennon’s claims in turn. II. The Ex Post Facto clause provides: “No Bill of Attainder or ex post facto Law shall be passed.” U.S. CONST, art. I, § 9, cl. 3; see also U.S. Const, art. I, § 10, cl. 1. A law does not run afoul of the Ex Post Facto clause unless it retroactively “alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); see also, e.g., Lynce v. Mathis, 519 U.S. 433, 440-41, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (citing Calder v. Bull, 3 U.S. (Dall.) 386, 390, 1 L.Ed. 648 (1798)); United States v. Brady, 88 F.3d 225, 227 (3d Cir.1996) (citing Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 326, 18 L.Ed. 356 (1866)). The Sentencing Guidelines-along with all statutes that impose or dictate sentence-are, of course, subject to the Ex Post Facto clause. See Miller v. Florida, 482 U.S. 423, 429-35, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); United States v. Kopp, 951 F.2d 521, 526 (3d Cir.1991); see also U.S. SENTENCING GüIDELINES MáNÜAL § 1B1.11 (2003)." }, { "docid": "12154273", "title": "", "text": "earlier statute— with a rigid legislative judgment as to which prior convictions must be admitted for impeachment purposes. We think the availability to a criminal defendant of the exercise of judicial discretion in this matter invests him with significant and substantial rights which are nullified by the legislative scheme enacted to replace it. Accordingly, to the extent that that scheme is applied in trials for offenses committed before its effective date, the statute in which it is embodied is condemned as an ex post facto law. It is generally accepted that laws which make acts criminal which, when done, were not criminal, or those which increase the seriousness of, or provide a greater punishment for, criminal acts over that which obtained when the acts were committed, fall within the constitutional condemnation as being ex post facto. Conversely, changes in procedure customarily are not generally treated as ex post facto. See, e.g., Frisby v. United States, 38 App.D.C. 22, 25 (1912). As Frisby noted, however, it has been clear, beginning with the first case in which the Supreme Court was called upon to construe the clause, that procedural changes can be ex post facto, id., at 25; and that those changes include alterations in the rules governing the admissibility of evidence. The Supreme Court’s initial pronouncement on the ex post facto clause held that an enactment of the Connecticut legislature setting aside a probate decree was not prohibited by the clause because the enactment did not relate to penal matters. Calder v. Bull, 3 U.S. (3 Dall.) 269, 1 L.Ed. 648 (1798). In so limiting the scope of the clause the Court also set forth, through Mr. Justice Chase, what laws it thought to be within the prohibition, and those included: . . . Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender ... Id. at 273. In Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1866), the Court struck down as ex" }, { "docid": "22059970", "title": "", "text": "unless forbidden by the constitution. They tend to secure the proper administration of justice and are in the interest,, equally, of the public and of persons accused of crime. We do not perceive that the Code of 1892, in force when the indictment was found, affected in any degree the substantial rights of those who had committed crime prior to its going into effect. It did not make criminal and punishable any act that was innocent when committed, nor aggravate any crime previously committed, nor inflict a greater punishment than the law annexed to such crime at the time of its com mission, nor alter the legal rules of evidence in order to convict the offender. These are the general tests for determining whether a statute is applicable to offences committed prior to its passage. Calder v. Bull, 3 Dall. 386, 390; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; Kring v. Missouri, 107 U. S. 221, 228; Duncan v. Missouri, 152 U. S. 377, 382. The provisions in question related simply to procedure. They only prescribed remedies to be pursued in the administration of the law, making no change that could materially affect the rights of one accused of crime theretofore committed. The inhibition upon the passage of ex postfaoto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed. The mode of trial is always under legislative control, subject only to the condition that the legislature may not, under the guise of establishing modes of procedure and prescribing remedies, violate the accepted principles that protect an accused person against ex post facto enactments. In Hopt v. Utah, 110 U. S. 574, 589, a statute that permitted the crime charged to be established by witnesses who by the law at the time the offence was committed were incompetent to testify in any case whatever was adjudged not to be ex post faoto within the meaning of the Constitution, the court observing that such a' statute did not increase the punishment" }, { "docid": "23100916", "title": "", "text": "dissenting) (statute should not be read to delegate power to allocate water without appropriate standards); L. Tribe, American Constitutional Law §§ 15-17, 284-291 (1978); Gewirtz, supra note 110, Wright, Book Review, Beyond Discretionary Justice, 81 Yale L.J. 575, 580, 582-87 (1972) (Wright, J.); Freedman, Review, Delegation of Power and Institutional Competence, 43 U.Chi.L.Rev. 307 (1976). . Since Geraghty was sentenced under 18 U.S.C. § 4208(a)(2) (1970), he became eligible for parole immediately upon incarceration. . 18 U.S.C. § 4203 (1970). . Defendant’s Answer to Complaint ¶ 48. A39. . 1 W. Blackstone, Commentaries *46. . See Crosskey, The True Meaning of the Constitutional Prohibition of Ex Post Facto Laws, 14 U.Chi.L.Rev. 539 (1947); Note, Ex Post Facto Limitations on Legislative Power, 73 Mich. 1491, 1500-01 (1975). . Art. I § 9 and § 10. For an excellent recent analysis of the ex post facto clause, see Tribe, supra note 117, 474-484 §§ 10-1-10-3. . Calder v. Bull, 3 U.S. (3 Dallas) 385, 390, 1 L.Ed. 648 (1798) (opinion of Chase, J.). See United States Trust v. New Jersey, 431 U.S. 1, 10-11 n. 13, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977). . Calder v. Bull, 3 U.S. [3 Dallas] at 390. . Kring v. Missouri, 107 U.S. 221, 235, 2 S.Ct. 443, 455, 27 L.Ed. 506 (1882) quoting United States v. Hall, 26 Fed.Cas.No.15,285, p. 84, 2 Wash.C.C. 366, aff’d 10 U.S. [6 Cranch] 171, 3 L.Ed. 189 (1810) (repeal of provision that conviction of second degree murder operated as acquittal of first degree murder). The court in Kring went on to say: “No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authorities before the imputed offense was committed, and which existed as a law at that time.” . In re Medley, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835 (1890) (new law mandating convicted murderer be kept in solitary confinement until execution and that warden should set date of execution without informing prisoner violated ex post facto clause). . Lindsey v. Washington, 301 U.S. 397, 400," }, { "docid": "11152947", "title": "", "text": "defendants to the effect that a retroactive construction of its applicability would render the amendment odious to the provisión of Article I, section 9 of the Constitution of the United States forbidding the passage by the Congress of an ex post facto law, is rejected. An ex post facto law is one which imposes a punishment for an act which was not punishable when it was performed or a punishment in addition to that then prescribed. Burgess v. Salmon, 97 U.S. 381, 24 L.Ed. 1104; United States Ex rel. Forino v. Garfinkel, 3 Cir., 166 F.2d 887. It deals, therefore, with the definition of punishment of crimes rather than with legislation civil in character. Evans v. Robinson, C.C. Md, 8 Fed.Cas. 886, No. 4,571. Still, the Congress may not escape the impact of the constitutional prohibition of ex post facto legislation by giving a civil form to a statute which is criminal in substance. Burgess v. Salmon, supra; Cummings v. Missouri, 4 Wall. 277, 71 U.S. 277, 18 L.Ed. 356. Hence, laws that are actually and strictly penal statutes are within the constitutional denunciation. United States v. Hughes, D.C., 26 Fed.Cas. 414, No. 15, 416; De Pass v. Bidwell, C.C., 124 F. 615. But, the cited statute is not, and is not claimed to be a criminal enactment. Neither is it, by the weight of authority, penal in character. Crary v. Porter, 8 Cir., 157 F.2d 410; Kessler v. Fleming, 9 Cir., 163 F.2d 464; Heitmuller v. Berkow, 83 U.S. App.D.C. 70, 165 F.2d 961 ; Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917; although it must be recognized that there is authority to the contrary, to the extent that the statute confers a right of action for multiple damages on the government for its own benefit rather than on the injured tenant. Porter v. Montgomery, 3 Cir., 163 F.2d 211. In passing, it is to be observed that Section 205, both in its original form and as amended, in express terms, defines the recovery allowed under it as “liquidated damages”. But the judicial characterization as" }, { "docid": "12154274", "title": "", "text": "the Supreme Court was called upon to construe the clause, that procedural changes can be ex post facto, id., at 25; and that those changes include alterations in the rules governing the admissibility of evidence. The Supreme Court’s initial pronouncement on the ex post facto clause held that an enactment of the Connecticut legislature setting aside a probate decree was not prohibited by the clause because the enactment did not relate to penal matters. Calder v. Bull, 3 U.S. (3 Dall.) 269, 1 L.Ed. 648 (1798). In so limiting the scope of the clause the Court also set forth, through Mr. Justice Chase, what laws it thought to be within the prohibition, and those included: . . . Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender ... Id. at 273. In Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1866), the Court struck down as ex post facto the clause in the Missouri Constitution— there applied to a Catholic priest—punishing those who held office and did not take the loyalty oath constitutionally required of the clergy and others which stated, inter alia, that the taker had never manifested support for the confederacy. The Court in part characterized the clauses in question as operating to “subvert the presumptions of innocence, and alter the rules of evidence,” theretofore thought to have been fundamental. Id. at 328. Kring v. Missouri, 107 U.S. 221, 2 S. Ct. 443, 27 L.Ed. 506 (1882), similarly invalidated a Missouri constitutional provision which had been interpreted to abrogate pre-existing law that made judgment and sentence for second degree murder, where first degree murder had been charged, an acquittal of the first degree charge. The Court held that . the Constitution of Missouri so changes the rule of evidence, that what was conclusive evidence of innocence of the higher grade of murder when the crime was committed . . is not received as evidence at all, or, if received, is" }, { "docid": "10875099", "title": "", "text": "attainder. EX POST FACTO LEGISLATION Count III of plaintiff’s complaint alleges that S. 924 is an ex post facto law. An ex post facto law was originally conceived to be any law which renders an action done before the passing of the law and which was innocent when done, criminal; and which exacts punishment upon such action. Caider v. Bull, 3 U.S. (3 Dall.) 386, 390,1 L.Ed. 648 (1798). This definition has been altered slightly over time, and now connotes a law which imposes a punishment for an act which was not punishable at the time it was committed. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1867); accord Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). The plaintiff argues that S. 924 imposes a sanction on UNC for actions which UNC undertook prior to the enactment of S. 924, and which were not punishable prior to the enactment of the statute. Therefore, plaintiff contends that it is confronted with an ex post facto law. In opposition, the State argues that the posting of a bond is neither a criminal penalty nor a criminal penalty masquerading as a civil penalty. The Supreme Court has consistently held that the ex post facto prohibition relates exclusively to criminal statutes or civil statutes which camouflage criminal penalties. Galvan v. Press, 347 U.S. 522, 531 & n. 4, 74 S.Ct. 737, 742 & n. 4, 98 L.Ed. 911 (1954); Bankers Trust Co. v. Blodgett, 260 U.S. 647, 652, 43 S.Ct. 233, 235, 67 L.Ed. 439 (1923); see United States Trust Co. v. New Jersey, 431 U.S. 1, 17 n. 13, 97 S.Ct. 1505, 1515 n. 13, 52 L.Ed.2d 92 (1977). Thus, every after-the-fact imposition of a burden will not implicate the ex post facto prohibition in the United States Constitution. Weaver v. Graham, supra, enunciated the modern standard for determining whether a legislative enactment is an ex post facto law. If the statute is retrospective and if it impermissibly disadvantages the offender affected by it, the statute is an ex post facto law." }, { "docid": "15470973", "title": "", "text": "a change in rules of evidence or procedure lessens the degree or amount of proof necessary to convict a defendant of a criminal offense below the quantity necessary to convict him of that same offense at the time of its commission. Such changes may run afoul of the ex post facto clauses of the Constitution. See Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925); Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898); Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898); Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883); Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1866); Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798); Donald v. Jones, 445 F.2d 601, 604-05 (5th Cir. 1971); United States v. Henson, 159 U.S.App.D.C. 32, 486 F.2d 1292 (1973) (en banc). Here the reduced burden of proof would not result in the same criminal penalty as the defendant faced at the time of his offense. Rather, the result is a civil fine, admittedly equal in the eyes of the checkbook, but not in those of society. This reciprocal transformation of the sanction removes the situation from the ex post facto doctrine discussed above. The presence of some alteration in penalty in the shift from criminal to civil fines does not negate our chief analysis regarding the inapplicability of the general saving clause to the case at bar. That alteration may still be outweighed by the congressional emphasis on facilitating enforcement of Shipping Act commands by eliminating procedural obstacles. Such a balance brings the case within the established canon of statutory construction — of which Congress may be assumed to be cognizant in the same manner we assume it to be aware of the general saving clause — that procedural and remedial changes have immediate applicability." }, { "docid": "21188514", "title": "", "text": "the United States first had occasion to consider what constituted an ex post facto law in Calder v. Bull, 3 Dall. 386,1 L.Ed. 648 (1798). Mr. Justice Chase, there speaking for the Court, stated four distinct classes of law were embraced by that constitutional concept: “1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal ; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” 3 Dall, at 390. (Emp. added.) However, such classification was not deemed exclusionary, and a fifth has been added, namely: Every law which, “in relation to the offence or its consequences, alters the situation of a party to Ms disadvantage.” Kring v. Missouri, 107 U.S. 221, 228, 2 S.Ct. 443, 449, 27 L.Ed. 506 (1882). (Emp. added.) It is this fifth class with which we are concerned in the case at bar. In the Kring case, supra, the procedural matter which the Supreme Court considered to be ex post facto was stated thus: “In the case before us the Constitution of Missouri so changes the rule of evidence, that what was conclusive evidence of innocence of the higher grade of murder when the crime was committed, namely, a judicial conviction for a lower grade of homicide, is not received as evidence at all, or, if received, is given no weight in behalf of the offender. It also changes the punishment, for, whereas the law as it stood when the homicide was committed was that, when convicted of murder in the second degree, he could never be tried or punished by death for murder in the first degree, the new law enacts that he may be so punished," }, { "docid": "23655312", "title": "", "text": "issues of material fact and the movant is entitled to judgment as a matter of law. See Fed.R. Civ.P. 56(c). The Constitution provides that “[n]o State shall ... pass any ... ex post facto Law_” U.S. Const, art. I, § 10, cl. 1. At the time the Constitution was drafted, the phrase “ex post facto law” was a term of art with a well-established meaning. See Calder v. Bull, 3 U.S. (Dall.) 386, 1 L.Ed. 648 (1798). Justice Chase’s opinion in Calder v. Bull, 3 U.S. (Dall.) 386,1 L.Ed. 648 (1798), identified several legislative acts that clearly implicated the core concerns of the various ex post facto clauses that existed at the time of the Constitution’s framing. One such legislative act he noted was: “Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed.” Id. at 390, 1 L.Ed. at 650 (opinion of Chase, J.) (emphasis in original). The Supreme Court’s ex post facto rulings have been faithful to the original principle that “every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed,” violates the ex post fac-to provision. See Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351 (1987); Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977); Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937); Rooney v. North Dakota, 196 U.S. 319, 324-325, 25 S.Ct. 264, 265-266, 49 L.Ed. 494 (1905); In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 387, 33 L.Ed. 835 (1890); Cummings v. Missouri, 71 U.S. 277, 325-326, 18 L.Ed. 356, 363-364 (1867); Calder v. Bull, 3 U.S. (Dall.) 386, 390, 1 L.Ed. 648, 650 (1798). Before addressing the substantive issue of whether the Board’s action violates the ex post facto clause, three preliminary issues must be discussed. First, are the Board’s rules laws within the meaning of the ex" }, { "docid": "15470972", "title": "", "text": "substance to save, for that which was still is. Accordingly, the order dismissing the indictment is AFFIRMED. . Turner relied on Bowles v. Strickland, 151 F.2d 419 (5th Cir. 1945), where this court gave immediate application to the elimination of the requirement that the Price Administrator under the Emergency Price Control Act of 1942 obtain the approval of the Secretary of Agriculture before commencing suits to recover overcharges under that Act. We applied the amendment to pending suits because it “did not affect substantive rights, but related only to the procedural machinery provided to enforce such rights.” 151 F.2d at 420. . The presupposition of our conclusion that criminal prosecution for pre-amendment acts did not survive is that the new civil sanctions could be exacted for those acts. Application of the civil penalties for pre-amendment acts would impose the same dollar sanction on a defendant under a less stringent burden of proof than the government was required to carry at the time of the offense. Such a prospect, however, is distinct from cases in which a change in rules of evidence or procedure lessens the degree or amount of proof necessary to convict a defendant of a criminal offense below the quantity necessary to convict him of that same offense at the time of its commission. Such changes may run afoul of the ex post facto clauses of the Constitution. See Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925); Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898); Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898); Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883); Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1866); Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798); Donald v. Jones, 445 F.2d 601, 604-05 (5th Cir. 1971); United States v. Henson, 159 U.S.App.D.C. 32, 486 F.2d 1292 (1973) (en banc). Here the reduced burden of proof would not result in the same criminal penalty as the defendant faced at the" }, { "docid": "16153537", "title": "", "text": "terms of whether the change in law “disadvantage[s]” the defendant. That language is also in older Supreme Court cases. See, e.g., Kring v. Missouri, 107 U.S. (17 Otto) 221, 27 L.Ed. 506 (1883). In a sense, the change wrought by Stouffer disadvantages the offender, who under the earlier Oklahoma court interpretations would have his death sentence automatically reduced to life imprisonment upon establishing that the jury found an erroneous mitigating circumstance. An offender, however, does not win his ex post facto argument by proving disadvantage alone. See, e.g., Beazell v. Ohio, 269 U.S. 167, 170-71, 46 S.Ct. 68, 68-69, 70 L.Ed.2d 216 (1925); Hopt v. Utah, 110 U.S. 574, 589-90, 4 S.Ct. 202, 209-10, 28 L.Ed. 262 (1884). As we recognized in Affleck, even a change in the law that “seriously disadvantages” a defendant is not prohibited by the Ex Post Facto Clause if it affects only matters of procedure and does not “impose[ ] a punishment for an act which was not punishable at the time it was committed; or impose[ ] additional punishment to that then prescribed; or change[ ] the rules of evidence by which less or different testimony is sufficient to convict than was then required.” 765 F.2d at 948, 949 (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1867)). In Af-fleck, we viewed the modern Supreme Court cases as modifying the absolute-sounding words of Kring and other decisions, and stated that the true focus of ex post facto analysis is on “the elements of the offense, the conditions and quantum of punishment, and the quantity and degree of proof necessary to establish guilt.” 765 F.2d at 950. In the one modern Supreme Court case involving the application of ex post facto principles to the death penalty, Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the Court upheld against ex post facto challenge application of a new Florida death penalty statute changing the functions of judge and jury as applied to one who committed the crime before the statute’s enactment. The prior statute required the death" }, { "docid": "22273684", "title": "", "text": "the Eastern District Criminal- Court, chapter 471, Laws 1899, was ratified March 6, 1899.” The subject has been several times considered by this court. The first case was that of Calder v. Bull, 3 Dall. 386, where the important decision was made that the provision prohibiting ex post facto laws had no application to legislation concerning civil rights. But the opinion, delivered by Mr. Justice Chase, contains a classification of the criminal cases in which the provision is applicable: “ 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates the crime or makes it greater than it was when committed. 3d. Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence in order to convict the offender.” In Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333, a law which excluded a minister of the gospel from the exercise of his clerical functions, and a lawyer from practice in the courts, unless each would take an'oath that they had not engaged in or encouraged armed hostilities against the Government of the United States, was held to be an ex post facto law, because it punished, in a manner not before prescribed by law, offences committed before its passage, and because it instituted a new rule of evidence in aid of con viction. In Kring v. Missouri, 107 U. S. 221, will be found an elaborate review of the history of the ex post facto clause of the Constitution and of its construction by the Federal and the state courts. Kring was convicted, of murder in the first degree, and the judgment of condemnation was affirmed by the Supreme Court of Missouri. A previous sentenced pronounced on his plea of murder in the second degree and subjecting" }, { "docid": "6441194", "title": "", "text": "violated the ex post facto clause of the Constitution. We find that it did. A long time ago the United States Supreme Court defined ex post facto laws to include “[e]very law which alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). (Emphasis in original.) That definition represents the law today just as it did in 1798. The retroactive application given Section 207(6) by the trial court “alter[ed] the legal rules of evidence” so that appellant was convicted on “less, or different, testimony, than the law required at the time of the commission of the offence.” Certainly the court’s charge, “ ‘in its relation to the offence, or its consequences, alter[ed] the situation of the accused to his disadvantage.’” Thompson v. Utah, 170 U.S. 343, 351, 18 S.Ct. 620, 623, 42 L.Ed. 1061 (1898), quoting United States v. Hall, 2 Wash.C.C. 366. Moreover, Congress, in enacting Section 207(6), specifically intended to alter the situation of the accused to his disadvantage. Congress was concerned that existing law “ * * * permití [ed] dangerous criminals, particularly psychopaths, to win acquittals of serious criminal charges on grounds of insanity by raising a mere reasonable doubt as to their sanity * * H.R.Rep.No.91-907, 91st Cong., 1st Sess., 74 (1970). Under the circumstances, appellant’s conviction must be reversed on ex post facto grounds. So ordered. . Art. 1, § 9, cl. 3 of the United States Constitution provides: “No Bill of Attainder or ex post facto Law shall be passed.” . See Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905 (1915); Duncan v. Missouri, 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485 (1894); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Kring v. Missouri, 107 U.S. (7 Otto) 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883); Ex Parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1867);" }, { "docid": "8741874", "title": "", "text": "in that court and not a mere minor matter. The vital contrast is clear between the proceeding on the information of the single prosecuting attorney and on the deliberate and detached judgment of at least 18 grand jurors in whose action at least 12 must concur. In Kring v. State of Missouri, 107 U.S. 221, at page 232, 2 S.Ct. 443, 452, 27 L.Ed. 506, where the court was discussing what procedural rights are sufficiently substantial not to be taken away by ex post facto laws, it stated that the right to indictment by a grand jury was one of them, as follows: “Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed to the disadvantage of the prisoner by State legislation after the offence was committed, and such legislation not held to be ex post facto because it relates to procedure, as it does according to Mr. Bishop? “And can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by ex post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? We think it cannot.” (Emphasis supplied.) In Beazell v. State of Ohio, 269 U.S. 167, at page 170, 46 S.Ct. 68, 69, 70 L.Ed. 216, in discussing those procedural changes which are so substantial that they cannot be affected by an ex post facto law, the court, referring to Kring: v. Missouri, states: “And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of th& commission of his offense, or which, otherwise affect him in such a harsh, and arbitrary manner as to fall within the constitutional prohibition. Kring v. [State of] Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506; Thompson v. [State of] Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061.” (Emphasis supplied.) The situation now in Guam is the same as it was in the unincorporated Territory of" }, { "docid": "23653239", "title": "", "text": "CONST, art. I, § 9, cl. 3; see also U.S. Const, art. I, § 10, cl. 1. A law does not run afoul of the Ex Post Facto clause unless it retroactively “alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); see also, e.g., Lynce v. Mathis, 519 U.S. 433, 440-41, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (citing Calder v. Bull, 3 U.S. (Dall.) 386, 390, 1 L.Ed. 648 (1798)); United States v. Brady, 88 F.3d 225, 227 (3d Cir.1996) (citing Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 326, 18 L.Ed. 356 (1866)). The Sentencing Guidelines-along with all statutes that impose or dictate sentence-are, of course, subject to the Ex Post Facto clause. See Miller v. Florida, 482 U.S. 423, 429-35, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); United States v. Kopp, 951 F.2d 521, 526 (3d Cir.1991); see also U.S. SENTENCING GüIDELINES MáNÜAL § 1B1.11 (2003). But a District Court is entitled to employ the Guidelines in place at the time of sentencing unless doing so would expose the defendant to harsher penalties than were in effect at the time the crime was committed. See United States v. Corrado, 53 F.3d 620, 622-23 (3d Cir.1995). In order to establish, therefore, that the Ex Post Facto clause requires the application of an earlier version of the Sentencing Guidelines, a defendant must show that the crime was committed at a time that the earlier Guidelines version was in force and that the earlier version is more favorable to him or her. See United States v. Audinot, 901 F.2d 1201, 1202 (3d Cir.1990). A. Lennon first contends that the version of the Guidelines in force on the date of her 1994 re-entry-the 1993 Guidelines-should have been used to calculate her sentence. Those guidelines would have been more favorable to her because, she argues, she would have faced-before a reduction for acceptance of responsibility-a total offense level of 8, rather than the level 24 the" }, { "docid": "6441195", "title": "", "text": "Wash.C.C. 366. Moreover, Congress, in enacting Section 207(6), specifically intended to alter the situation of the accused to his disadvantage. Congress was concerned that existing law “ * * * permití [ed] dangerous criminals, particularly psychopaths, to win acquittals of serious criminal charges on grounds of insanity by raising a mere reasonable doubt as to their sanity * * H.R.Rep.No.91-907, 91st Cong., 1st Sess., 74 (1970). Under the circumstances, appellant’s conviction must be reversed on ex post facto grounds. So ordered. . Art. 1, § 9, cl. 3 of the United States Constitution provides: “No Bill of Attainder or ex post facto Law shall be passed.” . See Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905 (1915); Duncan v. Missouri, 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485 (1894); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Kring v. Missouri, 107 U.S. (7 Otto) 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883); Ex Parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1867); Frisby v. United States, 38 App.D.C. 22 (1912). See also, generally, Croseky, The True Meaning of the Constitutional Provision of Ex Post Facto Laws, 14 U.Chi.L.Rev. 539 (1947). . We find no language in the statute or in its legislative history, and we have been cited to none, which indicates that Congress intended it to be applied retroactively. . In view of the express intent of Congress and the obvious effect of the statute, the Government’s argument that § 207(6) provides for a mere procedural change which, applied retroactively, does not significantly alter the situation to appellant’s disadvantage may be dismissed as pure advocacy. Compare Kring v. Missouri, supra note 2, and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), with Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925)." } ]

[ { "docid": "11516777", "title": "", "text": "had by January 16, 1956. On April 11, 1956 plaintiffs moved to file an amended complaint because, with respect to defendant Twentieth Century-Fox Film Corporation, “In te original- Complaint defendant, Twentieth Century-Fox Film Corporation, was inadvertently referred to as a New York corporation, whereas in fact it is a Delaware corporation and the Amended Complaint corrects that.” Over objection the amendment was allowed. The defendant corporation urges that the amended complaint adds a new party and asserts a new claim a®ainst ^ The point is very carefully argued but it is impossible to find merit in it. The Delaware corporation was properly named as a defendant in the original suit. It was legally served with process, It is in the record that this Delaware corporation on September 27, 1952 assumed the liabilities of T.C.F. Film Cor-poration, a New York corporation which latter, prior to September 27, 1952, had been named Twentieth Century-Fox Film Corporation. _ T.C.F. Film Corporation before its dissolution on December 1, 1952 had made application for a certificate of withdrawal from doing business -n Pennsylvania. That certificate was igsued September 16 1954. In the circumstances Judge Van Dusen in the district court allowed the inadvertent mistaken description of this defendant’s place of origin to be corrected. We do not see that he could have fairly acted otherwise. County Theatre Co. v. Paramount Film Distributing Corporation, D.C.E.D.Pa.1958, 166 F.Supp. 221, 223. The order of the district court of October 5, 1959 will be affirmed." } ]

[ { "docid": "14774527", "title": "", "text": "to prevail he must show that a misnomer is involved in order to take advantage of the relation back doctrine incorporated in Rule 15(c). But this is not a true misnomer situation, or at least not the type of misnomer Rule 15(c) was envisioned to correct. What appellant actually accomplished by his Notice was to add or substitute a party. Corrections of misnomers are permitted under Rule 15(c). Travelers Indemnity Co. v. United States ex rel. Construction Specialties Co., 10th Cir. 1967, 382 F.2d 103; Wynne v. United States ex rel. Mid-States Waterproofing Co., Inc., 10th Cir. 1967, 382 F.2d 699; Wirtz v. Mercantile Stores, Inc., E.D.Okl.1967, 274 F.Supp. 1000; Marino v. Gotham Chalkboard Mfg. Corp., S.D.N.Y.1966, 259 F.Supp. 953; Infotronics Corp. v. Varian Associates Corp., S.D. Tex.1968, 45 F.R.D. 91. Generally, in the cases cited the plaintiff actually sued and served the correct party, the party he intended to sue, but mistakenly used the wrong name of defendant. The defendant, in these cases, of course, had notice of the suit within the statutory period and was not prejudiced by a technical change in the style of the action. The addition or substitution of parties who had no notice of the original action is not allowed. United States ex rel. Statham Instruments, Inc. v. Western Casualty & Surety Co., 6th Cir. 1966, 359 F.2d 521; People of the Living God v. Star Towing Co., Inc., E.D.La.1968, 289 F.Supp. 635; Martz v. Miller Brothers Co., Del.1965, 244 F.Supp. 246; Cone v. Shunka, W.D.Wis.1966, 40 F.R.D. 12; 1A Barron & Holtzoff, Federal Practice and Procedure, § 451 (Wright ed.). Substitution of a completely new defendant creates a new cause of action. Permitting such procedure would undermine the policy upon which the statute of limitations is based. Professor Moore states the general rule as being that “15(c) will not apply to an amendment which substitutes or adds a new party or parties for those brought before the court by the original pleadings whether plaintiff or defendant.” 3 Moore Par. 15.15 [4.-1], p. 1041. This Circuit has recognized an exception to this rule where" }, { "docid": "978358", "title": "", "text": "test should be whether, on the basis of an objective standard, it is reasonable to conclude that the plaintiff had in mind a particular entity or person, merely made a mistake as to the name, and actually served the entity or person intended; or whether plaintiff actually meant to serve and sue a different person.’ [2 Moore’s Federal Practice, 2nd ed., Sec. 4.44, p. 1042].” Grandey v. Pacific Indemnity Company, 217 F.2d 27 (5th Cir. 1954), quoted in Jackson v. Duke, supra, 259 F.2d at 7. The Court then concluded: “The trial court had no doubt that the defendant * * * was the party intended to be sued. Since the right party was before the court, although under a wrong name, the trial judge properly allowed the amendment to cure the misnomer. Like any other amendment under Rule 15 (c) it relates back to the date of the filing of the original complaint.” (Emphasis added.) Jackson v. Duke, supra, at 7. Under the facts of the instant case, we have no doubt that the defendant T. G. & Y. Stores Co. was the party intended to be sued (See our discussion in our prior Ruling). Since the right party was before the Court, although originally under a wrong name, we hold the amendment was properly allowed to cure the misnomer and under the first sentence of Rule 15(e) it relates back to the date of filing. Cf. Wentz v. Alberto Culver Company, 294 F.Supp. 1327 (D.Mont. 1969); County Theatre Co. v. Paramount Film Dist. Corp., 166 F.Supp. 221 (E.D.Pa. 1958), approved Shapiro v. Paramount Film Dist. Corp., 274 F.2d 743 (3rd Cir. 1960); People of the Living God v. Star Towing Co., 289 F.Supp. 635, 641 (E.D.La. 1958). For these reasons and those set forth in our original Ruling, the Motion to Dismiss is denied. . 42 U.S.C. § 2000e-2(a) : Unlawful employment practices — Employer practices (a) 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" }, { "docid": "5547701", "title": "", "text": "CALEB M. WRIGHT, Chief Judge. There are two motions before the court: one is plaintiff’s motion seeking leave to amend his complaint and the other is defendant’s motion for summary judgment. The facts which give rise to these two motions will be set out at some length because, although one single determination is the key to both motions, courts have arrived at conflicting answers based upon slight variations in facts. On April 7, 1961, James W. Martz, Jr., suffered injuries when some cement and ceiling material fell while he was passing on a sidewalk adjacent to Miller Brothers’ furniture store in Newark, Dela ware. Almost two years later, on April 5, 1963, Martz filed a complaint in this court in which he sought damages against Miller Brothers Company. This complaint alleged that on the day of the accident the named defendant was in possession and control of store premises located on Main Street in Newark. The complaint was filed just two days before the statute of limitations ran on plaintiff’s claim, and service of process was not effected until April 10, 1963, several days after the tolling of the statute. Indeed, plaintiff’s attorney apparently had to act with some haste in order to commence this action in time because he was not apprised of the claim until a few days before the filing of the complaint. On April 29, 1963 defendant moved for summary judgment on the ground that it did not own or operate the Newark store. Subsequently, an affidavit was filed in which Bruno E. dePolo, secretary of the defendant, stated on information and belief that the premises upon which plaintiff was injured were owned by Miller Brothers Company of Newark, a corporation separate and distinct from Miller Brothers Company. There followed a period in which plaintiff’s attorney sought through interrogatories and depositions to establish the true ownership of the Newark store. He found that the Newark store was, indeed, operated by Miller Brothers Company of Newark which was a separate corporation from Miller Brothers Company which operated a furniture store in Wilmington. He also discovered that the" }, { "docid": "4657526", "title": "", "text": "Act of 1934 and one of the Rules of the Securities Exchange Commission promulgated thereunder, the decision of the Court with reference to the motion of defendants William Martz Beury and John Beury Gallaudet to dismiss the complaint, hereinafter announced, disposes of that contention of plaintiffs; and although not intended by plaintiffs, it now appears that the action is founded solely on diversity of citizenship. We therefore turn to Section 1401, which defines the territorial jurisdiction of district courts in stockholders’ derivative actions. This section authorizes venue in any district wherein the corporation on whose behalf the action is brought might have sued the same defendants. Obviously, if this were an ordinary diversity suit between or among individuals, it could not be brought in the Southern District of West Virginia, since neither all the plaintiffs nor all the defendants reside in this district. However, given the jurisdictional right to sue the same defendants, the corporation on whose behalf the suit is brought, namely, The Algoma Coal and Coke Company, might have sued these defendants in the Southern District of West Virginia, since that is the district of its own residence for federal venue purposes. There is some diversity of authority in a situation such as this, but the better reasoning sustains the proposition that this court has venue of the action. Montro Corp. v. Prindle, D.C., 105 F.Supp. 460; Saltzman v. Birrell, D.C., 78 F.Supp. 778. See also, Lavin v. Lavin, 2 Cir., 182 F.2d 870, 18 A.L.R.2d 1017; Greenberg v. Giannini, 2 Cir., 140 F.2d 550, 152 A.L.R. 966; Tucker v. New Orleans Laundries, Inc., D.C., 90 F.Supp. 290. Contra, Schoen v. Mountain Producers Corporation, 3 Cir., 170 F.2d 707, 5 A.L.R.2d 1226. The motion of the defendants other ■than William Martz Beury and John Beury Gallaudet to dismiss the complaint for lack of venue will be denied. As ground for the allegation that the action arises under the Securities Exchange Act of 1934, plaintiffs set up in their complaint two stock transactions which they say were accomplished by manipulative and deceptive devices and contrivances, and by use of" }, { "docid": "77123", "title": "", "text": "Moreover, Naxon’s attorney agreed to enter into the stipulated dismissal if defendants’ attorney would provide him with the name of the proper defendant. It is well established that affirmative tactical decisions of counsel cannot constitute “excusable neglect or mistake” under Rule 60(b)(1). Federal’s, Inc. v. Edmonton Investment Co., 555 F.2d 577, 583 (6th Cir. 1977); United States v. 1,550.44 Acres of Land, 369 F.Supp. 1078, 1079 (D.N.D.1974). 2. Under Rule 60(b)(3) Naxon argues that Sylvania and Ultronic and their attorneys, who also represent GTE, “misrepresented or concealed” the name of the proper corporate defendant in response to Naxon’s interrogatories in Sylvania. That contention is equally unpersuasive for a number of reasons. First, none of the interrogatories can be fairly read to have requested the name of the correct defendant. Judgment cannot be vacated under Rule 60(b) on grounds of alleged fraud or misconduct unless the production of certain evidence is clearly called for by any fair reading of the discovery order. Montgomery v. Hail, 592 F.2d 278, 279 (5th Cir. 1979). Second, even had Naxon sought discovery of the name of the proper defendant in Sylvania, it is questionable whether the wrong defendants would have been required to provide it, for such information would not be “reasonably calculated to lead to the discovery of admissible evidence.” See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352, 98 S.Ct. 2380, 2390, 57 L.Ed.2d 253 (1978). Finally, and at the very least, Sylvania and Ultronic were under no affirmative obligation to disclose the proper defendant under the existing circumstances; rather “one in the position of plaintiff’s attorney must be diligent in ferreting out the proper parties defendant. . .. ” Martz v. Miller Brothers Co., 244 F.Supp. 246, 252 (D.Del.1965). 3. As for the catch-all provision of Rule 60(b)(6), Naxon has simply failed to demonstrate its entitlement to relief under that subsection. Rule 60(b)(6) is only to be invoked in “extraordinary cases.” Ackermann v. United States, 340 U.S. 193, 200, 71 S.Ct. 209, 212, 95 L.Ed. 207 (1950); Wright and Miller, Federal Practice and Procedure § 2864, and cases cited therein. This" }, { "docid": "21974238", "title": "", "text": "the plaintiff concerning her claim. There was no deception employed by the investigator as to the identity of the defendant. .. County Theatre Co. v. Paramount Film Dist. Corp., 166 F.Supp. 221 (E.D.Pa. 1958), aff’d sub. nom. Shapiro v. Paramount Film Dist. Corp., 274 F.2d 743 (3 Cir. 1960). Defendant relies upon the case of Martz v. Hiller Brothers Company, 244 F.Supp. 246 (D.Del., 1966) which may be to the contrary. In that case there was a corporation in existence bearing the name used in the complaint sought to be amended — -not so here. In this case the misnomer was caused by the use of words which were not a part of the name of the defendant named in the complaint, or of the corporation sought to he sued — not so in Martz. There the words which had to be changed were a part of the corporate names rather than words unnecessarily used to describe the corporation. If these differences do not fairly distinguish Martz, then the court here refuses to follow it. . The court deems the correction of misnomers to be a matter of federal procedural law, and under the theory here adopted it has been unnecessary to determine when the cause of action accrued under state law. If the case should ultimately be decided in the state court and if the state court determines as a matter of its own procedure that a different rule as to misnomers should apply, the state court may be faced with the problem under its own Rule 15 of whether the cause of action accrued before the Delaware corporation had knowledge of the institution of the action. If so, it will be free to choose from among the several alternatives (See 11 A.L.R.2d 277) unembarrassed by any opinion of this court. . 1A Moore’s Federal Practice, 2d ed., pp. 1203-1204. . Where jurisdiction did in fact exist, this may be done. Firemen’s Ins. Co. of Newark, N. J. v. Robbins Coal Co., 288 F.2d 349 (5 Cir. 1961) ; 1A Moore’s Federal Practice 2nd ed., p. 317." }, { "docid": "11640336", "title": "", "text": "1952. One of the named defendants was Twentieth Century-Fox Film Corporation. In the complaint, this corporation was described as a corporation organized under the laws of New York, but this description does not appear in the caption. Service was had in Philadelphia upon one Sam E. Diamond, who has occupied the position of branch manager at the same address for both Fox-New York and Fox-Delaware from 1952 to 1957. Plaintiff now seeks to amend its Complaint under Rule 15(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., so as to describe the Fox corporation as having been organized under the laws of the State of Delaware. In opposition to this motion, counsel for defendant Fox-New York contends that to allow such an amendment would constitute a substitution of one distinct corporate entity for another and, if allowed, would deny defendant the benefit of the statute of limitations. In support of this contention, the defense points out that at the time of this suit, Fox-New York was a proper party defendant, if liable, even though its liability would be only for a period of a little over a month-and-a-half. The cases hold that where the words of the Complaint sought to be amended refer only to the description or identity of the defendant and are not a part of the defendant’s corporate name, such as words referring to the state of incorporation of the defendant, such words are freely amendable. Triangle Conduit & Cable Co., Inc., v. National Electric Products Corp., D.C.Del.1941, 38 F.Supp. 533; Bowles v. Underwood Corp., D.C.E.D.Wis.1945, 5 F.R.D. 25; Porter v. Theo J. Ely Mfg. Co., D.C.W. D.Pa.1946, 5 F.R.D. 317; Hartford Accident & Indemnity Co. v. Interstate Equipment Corp., D.C.N.J.1947, 74 F. Supp. 791. This is consistent with the policy of liberality taken by the Federal Courts under Rule 15(a) in allowing amendments to correct a mere misnomer of a party. Williams v. Pennsylvania R. Co., D.C.Del.1950, 91 F.Supp. 652; Gifford v. Wichita Falls & Southern Railway Co., 5 Cir., 1955, 224 F.2d 374, certiorari denied, 1955, 350 U.S. 895, 76 S.Ct. 153, 100 L.Ed." }, { "docid": "21974236", "title": "", "text": "the purpose of the amendment was to liberalize rather than to restrict the right to amend, the vitality of the authority cited in footnote 3, supra, has not been diminished. In the course of reviewing the file in connection with the problems relating to the amendment, problems of jurisdiction, not mentioned by counsel, have come to the court’s attention. As indicated, the petition for removal was ostensibly filed on behalf of the Illinois corporation which the court now knows to have been nonexistent. It is probable that the ghost of a dissolved corporation could not effectuate a removal. If it could, the petition was still defective in that it did not negate Montana as the principal place of business of the corporation. A presence has been felt in this court; a petition was filed, a bond was filed, motions were made, stipulations were entered into. There was a viable presence here. That presence was of course the Delaware corporation. It is probable that at the time the removal petition was filed diversity of citizenship did exist, and that wherever the Delaware corporation’s place of business, it was not Montana. Since the court has held that the Delaware corporation was the defendant from the beginning, it is consistent to give that corporation a right to amend its petition for removal. It is ordered that the defendant, Alberto-Culver Company, a Delaware corporation, shall, if so advised, file a petition to amend the petition for removal within twenty (20) days from the filing of this order. If such petition is not so filed the court will, after a hearing to determine the assessment of costs for improvident removal, remand this case to the state court. The order staying proceedings, except of course as to the matters required by this order, is continued in force. . The attorney who signed and verified the petition for removal is now dead and for that reason the court has not inquired into the propriety of what was done here. . The Delaware Company had employed an investigator to do some investigation and negotiation. He sought information from" }, { "docid": "77124", "title": "", "text": "sought discovery of the name of the proper defendant in Sylvania, it is questionable whether the wrong defendants would have been required to provide it, for such information would not be “reasonably calculated to lead to the discovery of admissible evidence.” See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352, 98 S.Ct. 2380, 2390, 57 L.Ed.2d 253 (1978). Finally, and at the very least, Sylvania and Ultronic were under no affirmative obligation to disclose the proper defendant under the existing circumstances; rather “one in the position of plaintiff’s attorney must be diligent in ferreting out the proper parties defendant. . .. ” Martz v. Miller Brothers Co., 244 F.Supp. 246, 252 (D.Del.1965). 3. As for the catch-all provision of Rule 60(b)(6), Naxon has simply failed to demonstrate its entitlement to relief under that subsection. Rule 60(b)(6) is only to be invoked in “extraordinary cases.” Ackermann v. United States, 340 U.S. 193, 200, 71 S.Ct. 209, 212, 95 L.Ed. 207 (1950); Wright and Miller, Federal Practice and Procedure § 2864, and cases cited therein. This case does not fit that description. Thus Naxon’s motion to vacate the Sylvania dismissal fails on the merits as well. But even if it were to be granted, an amendment to the Sylvania complaint substituting GTE as defendant for Sylvania and Ultronic would not “relate back” to the April 2,1979 date the complaint was filed in that action. Rule 15(c) provides that claims against a substituted party will relate back only if the new party “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” That notice requirement is not satisfied merely because the proper party and the party for which it is substituted are related corporations, so long as they are distinct corporate entities and circumstances do not justify a piercing of the corporate veil. See, e. g., Martz v. Miller, supra; Robbins v. Esso Shipping Co. and Esso Standard Oil Co., 190 F.Supp. 880 (S.D.N.Y.1960). Here Naxon has failed to demonstrate that type of nexus between Sylvania and" }, { "docid": "23627479", "title": "", "text": "has been the subject of our present consideration. It appears to incorporate precisely the holding in Martz v. Miller Brothers Co., D.Del., 244 F.Supp. 246, 253-254 (1965). As was pointed out in Martz, state statutes of limitations are frequently geared to the filing of a complaint. This appears to be so in Illinois. However, Rule 15(c) is geared to notice. The party to be substituted must receive notice of the action “within the period provided by law for commencing the action against him.” Following Martz, given the facts in this case, it is apparent that Doris J. Fenton had no notice until after the statute of limitations had run. She could not have had notice that a suit had been filed against her until she heard about it. Id. at 254. The cases cited by plaintiffs, supra at note 2, are generally to the effect that the amendment changing a party’s name will relate back where the party intended to be served, though misdescribed, was actually the party served. In Wayne and Brittian, the proper defendant was served with process, though under an incorrect name. In McDonald, the defendant was sued and served under an incorrect corporate name. Its counsel admitted in open court that the proper corporate defendant had received notice of the claim before the running of the statute of limitations. The bar of the statute was lifted because plaintiff’s counsel was hospitalized and out of his office for several weeks and was unaware of the answer filed by defendant. In Williams, although an incorrectly named corporate defendant was sued and served, the party intended to be so named and served was actually before the court, filed an answer and appeared generally in open court. While adhering to the rule that an amendment whose effect is to add a new party to the suit will not relate back to circumvent the statute of limitations, the court there found that the only effect of the amendment was to correct a misnomer. Since, in the case at bar, the requirement has not been met that the defendant sought to be" }, { "docid": "23627478", "title": "", "text": "Aarhus Oliefabrik, A/S v. A. O. Smith Corp., E.D.Wis., 22 F.R. D. 33, 36 (1958): “Thus, amendment with relation back is generally allowed in order to correct a misnomer of defendant where the proper defendant is already in court and the effect is merely to correct the name under which he is sued. But a new defendant cannot-normally be substituted or added by amendment after the statute of limitations has run.” (Footnotes omitted.) This fits the case at bar. Similar interpretations of Rule 15(c), with numerous citations in support, are to be found in Archuleta v. Duffy’s, Inc., 10 Cir., 471 F.2d 33, 35 (1973); Munetz v. Eaton Yale & Towne, Inc., E.D.Pa., 57 F.R.D. 476, 479-480 (1973); Janus v. J. M. Barbe Co., N.D. Ohio, 57 F.R.D. 539, 542-543 (1972); People of the Living God v. Star Towing Co., E.D.La., 289 F.Supp. 635, 641-642 (1968); Robbins v. Esso Shipping Co., S.D.N.Y., 190 F.Supp. 880, 884-885 (1960). The second sentence in Rule 15(c) was added by amendment in 1966, 383 U.S. 1029, 1044. This amendment has been the subject of our present consideration. It appears to incorporate precisely the holding in Martz v. Miller Brothers Co., D.Del., 244 F.Supp. 246, 253-254 (1965). As was pointed out in Martz, state statutes of limitations are frequently geared to the filing of a complaint. This appears to be so in Illinois. However, Rule 15(c) is geared to notice. The party to be substituted must receive notice of the action “within the period provided by law for commencing the action against him.” Following Martz, given the facts in this case, it is apparent that Doris J. Fenton had no notice until after the statute of limitations had run. She could not have had notice that a suit had been filed against her until she heard about it. Id. at 254. The cases cited by plaintiffs, supra at note 2, are generally to the effect that the amendment changing a party’s name will relate back where the party intended to be served, though misdescribed, was actually the party served. In Wayne and Brittian, the proper" }, { "docid": "4256378", "title": "", "text": "the litigation against Industries within the statute of limitations. As stated in 6 Wright & Miller, Federal Practice and Procedure § 1498 at 119 (Supp.1978): In qrder for an amendment adding a party to relate back under Rule 15(c) the party to be added must have received notice of the action before the statute of limitations has run. Otherwise, the deprivation of the new party’s right to invoke a statute of limitations defense might raise a question of procedural due process. The venerable opinion of Martz v. Miller Brothers Company, 244 F.Supp. 246 (D.Del. 1965), succinctly demonstrates the operation of the rule. There, the court found an almost complete identity between two parties. The plaintiff had filed a complaint naming Miller Brothers Company as defendant, whereas he needed to sue Miller Brothers Company of Newark. Both stores had the same officers, with the exception of their secretaries and used joint advertising and telephone listings. Notwithstanding the near complete identity between the two corporations, the court held that plaintiff had not complied with Rule 15(c), even though he served a joint agent of the companies, because he did so three days after the expiration of the statute of limitations. See also Bazzano v. Rockwell International Corp., 439 F.Supp. 1167 (E.D.Mo.1977), rev’d on other grounds, 579 F.2d 465 (8th Cir. 1978), and cases cited therein. The fact that Title VII only provides for a 90-day limitation period provides no basis for altering this application of Rule 15(c). This Court has so held in another Title VII action, Dempsey v. The Shoe Show, Inc., C-77-302-WS (M.D.N.C. Oct. 17, 1978)— (unpublished), as have other courts. See Archuleta v. Duffy’s, Inc., 471 F.2d 33 (10th Cir. 1973); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973); Dixon v. Universal Atlas Cement Division, 437 F.Supp. 1071 (W.D.Pa.1977); and also Shelley v. Bayou Metals, 561 F.2d 1209 (5th Cir. 1977) — (Title VII and 42 U.S.C. § 1981). See also Carr v. Veterans Administration, 522 F.2d 1355 (5th Cir. 1975) — (action dismissed where plaintiff erroneously named the Veterans Administration instead of the United States, as" }, { "docid": "5547724", "title": "", "text": "one is equal to service on the other. This argument requires that the two stores be regarded simply as enterprises of the Miller family. The court could then say that an employee of either store was ultimately beholden to the family and find service on dePolo sufficient to notify the family — hence any or all of its corporate extensions. But such a piercing of the corporate veil does violence to the facts here. The officers of both corporations overlap, but they are not the same in each case. While the shareholders of each corporation are Millers, they are not always the same Millers. Nor is there evidence that where the same shareholders do participate in each company, their proportion of ownership in each is identical. Thus, one cannot say that any recovery to Martz would “come out of the same pocket.” Finally, on a more conceptual level, the corporations exist under Delaware law as distinct entities with all the immunities that the Delaware corporation law extends to separate corporations. In concluding his opinion in the Williams case, Judge Rodney wrote: “I conclude that it is in the interest of justice that the present motion be granted. It is clear that it is becoming increasingly the policy of the law to determine the claims of litigants upon their merits and to disregard technicalities, as far as possible. The conclusion reached in this case is believed to be in harmony t with that policy.” Williams v. Pennsylvania R. Co., 91 F.Supp. 652, 657 (D.Del.1950). Unfortunately, this decision is not in harmony with the salutary policy which Judge Rodney followed. But this court will not be the first — or the last — to express reluctance in making a decision which is unavoidable. Miller Brothers Company of Newark was not served with process before the running of the statute of limitations. Even if a decision for plaintiff could be founded on effective notice to the defendant he sought to sue, Miller Brothers Company of Newark had no notice of plaintiff’s claim within the period of limitations or within that period plus the" }, { "docid": "20083914", "title": "", "text": "WOOLSEY, District Judge. The motion to dismiss the original bill of complaint and the amended bill of complaint on the ground that they, do not state a cause of action against A. C. Ailyn So Co., sole defendant before this court, is granted to the extent of dismissing the bill without prejudice. I. This case was removed from the New York Supreme Court for New York county, but there is not, and I think that there could not be, any dispute about the propriety of the removal for the necessary diversity of citizenship exists and the amount involved is adequate. II. There was an incredible amount of argument on the subject of a change in the caption and I ruled at the argument that the word “Inc.” should be left off of A. C. Allyn’s name because it is a corporation of Delaware where the use of that word is not required, and, consequently, “Inc.” is not properly a part of A. C. Allyn & Co.’s corporate name. There was also much argument on the question of whether the amended complaint was before me. Without going, into the details of this controversy, it is sufficient to state that I ruled at the argument that the amended complaint, which had been filed, should be deemed before me and that the motion to dismiss should be deemed to be addressed to it as well as to the original complaint. • Consequently, I am dealing with the motion on that basis. III. A motion to dismiss of this kind is, of course, equivalent to a demurrer, and must be dealt with on the basis that the allegations of the complaint are admitted. The question here, therefore, is whether the allegations show a cause of action against A. C. Ailyn So Co. which alone of the defendants named is now before the court. Frank D. Pavey, plaintiff herein, is a citizen of New York. A. C. Allyn & Co., sole defendant named, is a Delaware corporation. The Great Lakes Terminal Warehouse Company of Toledo is a corporation of the state of Ohio. It was" }, { "docid": "21974237", "title": "", "text": "exist, and that wherever the Delaware corporation’s place of business, it was not Montana. Since the court has held that the Delaware corporation was the defendant from the beginning, it is consistent to give that corporation a right to amend its petition for removal. It is ordered that the defendant, Alberto-Culver Company, a Delaware corporation, shall, if so advised, file a petition to amend the petition for removal within twenty (20) days from the filing of this order. If such petition is not so filed the court will, after a hearing to determine the assessment of costs for improvident removal, remand this case to the state court. The order staying proceedings, except of course as to the matters required by this order, is continued in force. . The attorney who signed and verified the petition for removal is now dead and for that reason the court has not inquired into the propriety of what was done here. . The Delaware Company had employed an investigator to do some investigation and negotiation. He sought information from the plaintiff concerning her claim. There was no deception employed by the investigator as to the identity of the defendant. .. County Theatre Co. v. Paramount Film Dist. Corp., 166 F.Supp. 221 (E.D.Pa. 1958), aff’d sub. nom. Shapiro v. Paramount Film Dist. Corp., 274 F.2d 743 (3 Cir. 1960). Defendant relies upon the case of Martz v. Hiller Brothers Company, 244 F.Supp. 246 (D.Del., 1966) which may be to the contrary. In that case there was a corporation in existence bearing the name used in the complaint sought to be amended — -not so here. In this case the misnomer was caused by the use of words which were not a part of the name of the defendant named in the complaint, or of the corporation sought to he sued — not so in Martz. There the words which had to be changed were a part of the corporate names rather than words unnecessarily used to describe the corporation. If these differences do not fairly distinguish Martz, then the court here refuses to follow it." }, { "docid": "4256377", "title": "", "text": "and who may have similar names or conduct their business from the same offices. . Typically, the intended defendant receives notice of the action and is aware of plaintiff’s mistake because service is made on one of its agents, who may or may not also be an agent for the named defendant. . In this case, each of the important elements identified in the treatise are extant. Tobacco is the subsidiary of Industries. In addition, Industries has utilized the management and employee personnel at Tobacco to staff its own positions. Moreover, the particular facts of this case further identify the closeness between the corporations. Here, Holden was initially employed in a temporary position with Industries but then switched to a permanent position with Tobacco. The general identity of interests between the corporations clearly fits within the guidelines set by the treatise, and the particular facts of this case leave no room for argument as to their closeness. Thus, the one, and only substantial, question presented here is whether Tobacco received notice of the institution of the litigation against Industries within the statute of limitations. As stated in 6 Wright & Miller, Federal Practice and Procedure § 1498 at 119 (Supp.1978): In qrder for an amendment adding a party to relate back under Rule 15(c) the party to be added must have received notice of the action before the statute of limitations has run. Otherwise, the deprivation of the new party’s right to invoke a statute of limitations defense might raise a question of procedural due process. The venerable opinion of Martz v. Miller Brothers Company, 244 F.Supp. 246 (D.Del. 1965), succinctly demonstrates the operation of the rule. There, the court found an almost complete identity between two parties. The plaintiff had filed a complaint naming Miller Brothers Company as defendant, whereas he needed to sue Miller Brothers Company of Newark. Both stores had the same officers, with the exception of their secretaries and used joint advertising and telephone listings. Notwithstanding the near complete identity between the two corporations, the court held that plaintiff had not complied with Rule 15(c), even" }, { "docid": "21974234", "title": "", "text": "be brought in received notice of the “institution of the action” within the period provided by law for commencing the action. The Delaware corporation, although advised that plaintiff was claiming damages on account of her use of the spray, as early as 1964, did not know of the institution of the action until February 15, 1966. The motion to amend is granted and in any further problems relating to limitations the court will hold that January 31, 1966, the date upon which the complaint was filed in the state court, (one day less than three years after the purchase), is the crucial date. This result is not reached by an application of that portion of Rule 15(c) added by the 1966 amendment and could not be reached under that portion of the rule because notice of the existence of a claim is not “notice of the institution of the action.” The court holds that there is a difference between correcting a misnomer and changing a party and that a misnomer may be corrected under the amendment power expressed in the first sentence of Rule 15(c). Prior to the amendment of Rule 15 in 1966, and when that rule contained only what is now the first sentence there was respectable authority which permitted an amendment to correct a misnomer and which related it back to the filing of the complaint. In this case the corporate name of the defunct Illinois corporation and of the extant Delaware corporation was Alberto-Culver Company. Words designating the state of incorporation were not a part of either name. At the time the complaint was filed there was but one Alberto-Culver Company and it was the Delaware corporation. Before the complaint was filed correspondence addressed to Alberto-Culver Company reached the Delaware corporation which, through its agents, responded in the name of Alberto-Culver Company. The process served in tihs case reached the Delaware corporation whose agents, on at least one occasion, receipted for the complaint and summons with the signature “Alberto Culver Co.” Since the 1966 amendment did not change the first sentence of Rule 15(c), and since" }, { "docid": "11794785", "title": "", "text": "manner there stated.” 39 F.R.D. 82, 83-84 (1966). Martz v. Miller Bros. Co., 244 F.Supp. 246 (D.Del.1965) and Messelt v. Security Storage Co., 14 F.R.D. 507 (D.Del. 1953)—both cited by defendant — seem to reflect a contrary interpretation of Rule 15(c). The subsequent revision of the Rule and the Advisory Committee Note which accompanied it have cast doubt upon these cases’ analyses, especially in light of later case law. See Wright & Miller, Federal Practice and Procedure, § 1498 at 509 n.92 (Messelt has no precedential value in light of 1966 amendments). . Yorden v. Flaste, 374 F.Supp. 516, 521 (D.Del. 1974); Fashion Novelty Corp. v. Cocker Mach. & Fdry. Co., 331 F.Supp. 960, 964-5 (D.N.J. 1971); 3 J. Moore, Federal Practice ¶ 15.15[5-2] at 1051-52; see Francis v. Pan American Trinidad Oil Co., 392 F.Supp. 1252, 1258 (D.Del.1975). . See, e. g., Yorden v. Flaste, supra (substitution of legal widow for spurious common law wife in survival and wrongful death actions); Hockett v. American Airlines, Inc., 357 F.Supp. 1343, 1347—48 (N.D.Ill.1973) (husband’s action for negligence amended to add wife’s claims for loss of consortium); Joseph v. House, 353 F.Supp. 367, 370 (E.D.Va.1973) (addition of plaintiffs in suit challenging validity of massage parlor ordinance); Fashion Novelty Corp. v. Cocker Mach. & Fdry. Co., supra (“virtual identity” between original plaintiff company and added plaintiff company); Newman v. Freeman, 262 F.Supp. 106 (E.D.Pa.1966) (parents’ damage claim for tort inflicted on child added to complaint of guardian on behalf of child). . Fed.R.Civ.P. 17 provides in pertinent part: “RULE 17. PARTIES PLAINTIFF AND DEFENDANT; CAPACITY. “(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the United States so provides, an action for the use or" }, { "docid": "5547723", "title": "", "text": "import of the claim. Further, it is reasonable to assume that dePolo informed the proper parties of Martz’s claim and of his mistake in bringing suit. But the court cannot act on surmise or on its own investigations to determine adequacy of service. In providing for service of process upon corporations, Rule 4(d) (3) F.R.Civ.P. sets out certain parties who are authorized to receive service. These parties are chosen because the capacity in which they serve gives reasonable assurance that the corporation will receive notice of the claim against it. But the rule does not go on to say that service is also good on anyone else who is likely to notify the corporation or who investigation shows did inform the corporation. Absent some recognized capacity in which to act, some connection cognizable in law, dePolo cannot be held the agent of Miller Brothers Company of Newark for purposes of service of process. Nor can the court accept the second alternative presented, the argument that the two corporations are so closely linked that service on one is equal to service on the other. This argument requires that the two stores be regarded simply as enterprises of the Miller family. The court could then say that an employee of either store was ultimately beholden to the family and find service on dePolo sufficient to notify the family — hence any or all of its corporate extensions. But such a piercing of the corporate veil does violence to the facts here. The officers of both corporations overlap, but they are not the same in each case. While the shareholders of each corporation are Millers, they are not always the same Millers. Nor is there evidence that where the same shareholders do participate in each company, their proportion of ownership in each is identical. Thus, one cannot say that any recovery to Martz would “come out of the same pocket.” Finally, on a more conceptual level, the corporations exist under Delaware law as distinct entities with all the immunities that the Delaware corporation law extends to separate corporations. In concluding his opinion in" }, { "docid": "21974235", "title": "", "text": "amendment power expressed in the first sentence of Rule 15(c). Prior to the amendment of Rule 15 in 1966, and when that rule contained only what is now the first sentence there was respectable authority which permitted an amendment to correct a misnomer and which related it back to the filing of the complaint. In this case the corporate name of the defunct Illinois corporation and of the extant Delaware corporation was Alberto-Culver Company. Words designating the state of incorporation were not a part of either name. At the time the complaint was filed there was but one Alberto-Culver Company and it was the Delaware corporation. Before the complaint was filed correspondence addressed to Alberto-Culver Company reached the Delaware corporation which, through its agents, responded in the name of Alberto-Culver Company. The process served in tihs case reached the Delaware corporation whose agents, on at least one occasion, receipted for the complaint and summons with the signature “Alberto Culver Co.” Since the 1966 amendment did not change the first sentence of Rule 15(c), and since the purpose of the amendment was to liberalize rather than to restrict the right to amend, the vitality of the authority cited in footnote 3, supra, has not been diminished. In the course of reviewing the file in connection with the problems relating to the amendment, problems of jurisdiction, not mentioned by counsel, have come to the court’s attention. As indicated, the petition for removal was ostensibly filed on behalf of the Illinois corporation which the court now knows to have been nonexistent. It is probable that the ghost of a dissolved corporation could not effectuate a removal. If it could, the petition was still defective in that it did not negate Montana as the principal place of business of the corporation. A presence has been felt in this court; a petition was filed, a bond was filed, motions were made, stipulations were entered into. There was a viable presence here. That presence was of course the Delaware corporation. It is probable that at the time the removal petition was filed diversity of citizenship did" } ]

[ { "docid": "21867538", "title": "", "text": "v. IDS Realty Trust, 643 F.2d 1305, 1313 n. 4 (8th Cir.1981). In calculating the reasonable fee, a court must be mindful of Congress’ intent to encourage the enforcement of constitutional rights through the award of “fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.” S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976), reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5913. As the District of Columbia Circuit Court noted in Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 24 (D.C.Cir.1984), cert. denied, — U.S. ---, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985), the lodestar rate is the opportunity cost of the clients the firm turned away to represent the plaintiffs. Congress intended that fee awards be calculated in the same manner for both private counsel and nonprofit legal services organizations. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). Unlike cases in which the plaintiff’s attorneys have no historical billing rates, however, the Community’s attorney has well defined billing rates which can be used to determine the lodestar rate if those rates are “reasonable.” Accepting the attorney’s own contract or billing rate where available as the attorney’s evaluation of the prevailing market is not tantamount to calculating fee awards for private attorneys differently from those calculated for nonprofit legal services groups. See Blum, 104 S.Ct. at 1547 n. 11. In this case, the attorney is performing the same type of service he performs in his general practice. As such, the attorney’s own billing rate provides a reliable indicator of the attorney’s assessment of what his clients are willing or able to pay for his services. A second attorney’s affidavit submitted by the Community’s counsel states that the present rate for attorneys working under BIA approved contracts is $65-$95 per hour and that non-BIA approved contract work performed by an attorney of similar skill and experience in counsel’s geographical area could command $100~$125 per hour. The attorney’s affidavit stated that he estimated the customary fee for similar work in the area at $75-$125 per hour. Given that" } ]

[ { "docid": "16803434", "title": "", "text": "at 167); see also SPIRG v. AT & T, 842 F.2d at 1436; Fine Paper, 751 F.2d 562; Lindy II, 540 F.2d at 102. In Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), the Supreme Court held that a fee award is to be calculated “according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Id. at 895, 104 S.Ct. at 1547 (construing 42 U.S.C. § 1988) (emphasis added). In the recent case of SPIRG v. AT & T, in which the Terris firm similarly represented plaintiffs, the Third Circuit was confronted with the question of how best to effectuate and apply the Blum holding to a “unique genre of attorneys, who operate for profit but essentially rely on fee shifting statutes.” Id. at 1438. After evaluating four distinct approaches, the court adopted the “community market rate” rule for determining fee awards pursuant to the provisions of the Clean Water Act stating: [U]nder the facts of this case, involving a for-profit public interest law firm [i.e., the Terris firm] that has an artificially low billing rate, the community billing rate charged by attorneys of equivalent skill and experience performing work of similar complexity, rather than the firm’s billing rate, is the appropriate hourly rate for computing the lodestar. Id. at 1450. Attorney’s fees in this case should thus be determined by applying the market rate in the relevant community. The problem which arises, however, is the location and area of the “relevant community.” Plaintiffs argue that pursuant to SPIRG v. AT & T the relevant community is where they do business, i.e., Washington, D.C. Defendant strongly disputes application of Washington, D.C. rates and argues that the relevant community and appropriate rate should be that of the forum, southern New Jersey. SPIRG v. AT & T is unfortunately not dispositive on this matter. While the court determined, for the purposes of that case, that the “relevant community” was Washington, D.C., it did not hold the location of the prevailing party’s law firm to be determinative" }, { "docid": "12559444", "title": "", "text": "Airlines, 746 F.2d 4, 24-25 (D.C.Cir.1984), cert. denied, 472 U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985). The Laffey court ruled that the historical rate of fee applicants is the proper figure for an award, so long as it is within the range of rates within the relevant legal community. However, the rule in this circuit is markedly different: This Circuit does not follow the legal standard set forth in Laffey. “While evidence of counsel’s customary hourly rate may be considered by the District Court, it is not a [sic] abuse of discretion in this type of case to use the reasonable community standard that was employed here.” Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir.) (quoting White v. City of Richmond, 713 F.2d 458 (9th Cir.1983)), cert. denied, 484 U.S. 990, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987). Furthermore, the D.C. Circuit has expressly overruled Laffey, holding that the prevailing market rates must be used to determine fees under the fee-shifting statutes. Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C.Cir.1988). 5.Whether Law Student Time is Compensable. Finally, the City asserts that the applicants have not established the right to corn- pensation for law student time. That contention ignores the court’s Supplemental Fee Order which included an award for such time and wherein this court encouraged use of law students to reduce more costly attorney hours. Supplemental Order Awarding Attorneys’ Fees at 9. The City’s position also is at odds with recent Supreme Court precedent. Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (recognizing right to compensation for law student time). Furthermore, the declarations provided by counsel establish that the $70 hourly rate sought is within the community standard. See Saperstein, Hunt and Mayer Decís., supra p. 34. Having considered all relevant Kerr factors and the arguments of counsel, the court finds that the rates requested by applicants are reasonable. The lodestar amount for all attorneys and paralegals is set forth in the accompanying Appendix. III. Enhancement of the Lodestar A strong presumption exists that the lodestar figure is" }, { "docid": "12559443", "title": "", "text": "rate for all tasks including review and organization of documents). In any event, as the fee applicants’ declarations and citations demonstrate, the efficacy of the pyramidal staffing pattern is a matter of some debate. Beasley Deck paras. 6-8; Moore Deck para. 4; Muehler v. Land O’Lakes, Inc., 617 F.Supp. 1370, 1379 (D.Minn.1985) (questioning wisdom of judicial involvement in staffing issues and noting efficiency of senior partners engaging in research); Laffey v. Northwest Airlines, 572 F.Supp. 354, 366 (D.D.C.1983) (noting efficiency of senior attorneys engaging in research, drafting, etc.), rev’d on other grounds, 746 F.2d 4 (D.C.Cir.1984), cert. denied, 472 U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985). The court declines to award fees by task type and instead will grant a uniform rate for each attorney. 4.Whether Rates are Beyond Counsels’ Normal Fees. The City urges that this court limit awardable fees to the rates which the fee applicants normally bill for their work. The City claims that the pertinent rule in this circuit is substantially similar to that espoused in Laffey v. Northwest Airlines, 746 F.2d 4, 24-25 (D.C.Cir.1984), cert. denied, 472 U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985). The Laffey court ruled that the historical rate of fee applicants is the proper figure for an award, so long as it is within the range of rates within the relevant legal community. However, the rule in this circuit is markedly different: This Circuit does not follow the legal standard set forth in Laffey. “While evidence of counsel’s customary hourly rate may be considered by the District Court, it is not a [sic] abuse of discretion in this type of case to use the reasonable community standard that was employed here.” Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir.) (quoting White v. City of Richmond, 713 F.2d 458 (9th Cir.1983)), cert. denied, 484 U.S. 990, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987). Furthermore, the D.C. Circuit has expressly overruled Laffey, holding that the prevailing market rates must be used to determine fees under the fee-shifting statutes. Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516," }, { "docid": "23035079", "title": "", "text": "courts of appeals and we have struggled with a fourth. In our view, none of these satisfactorily resolve this difficult question, but they all attest to its complexity. See Webb v. Maldonado, — U.S. —, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987) (opinion sur denial of cert.) (White, J., dissenting) (noting tension within the circuits concerning calculation of reasonable attorneys fees for attorneys with established billing rates). We discuss each of these approaches. 1. The Billing Rate Rule The first approach, which we call the “billing rate rule,” forged by the District of Columbia Circuit and followed by the Eighth Circuit, mandates using actual billing rates whenever they exist. The billing rate rule rejects a market rate based on the local market in favor of applying the attorneys’ actual billing rates, whenever such rates exist, even where attorneys set their rates artificially low to serve the public interest. In Shakopee Mdewakanton Sioux Community v. City of Prior Lake, 771 F.2d 1153 (8th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1185, 89 L.Ed.2d 301 (1986), the court depended exclusively on counsel’s billing rate. The court distinguished Blum from the case before it on the ground that the attorneys in the case before it possessed a billing schedule for similar work. The Skakopee court articulated its policy of avoiding “windfalls to attorneys” in awarding fees. Id. at 1160 (quoting Senate Report at 6, U.S.Code Cong. & Admin. News 1976, p. 5913). It reasoned that “the lodestar rate is the opportunity cost of the clients the firm turned away to represent the plaintiffs.” Id. at 1160. In Save Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43, rehearing en banc granted, 830 F.2d 1182 (D.C.Cir. 987), Judge Bork addressed the same question: [I]f an attorney has a customary billing rate, that rate constitutes the presumptively reasonable rate to use in computing a fee award. In general, only if the attorney himself has no customary billing rate may the court base its fee award on a composite average market hourly rate. 826 F.2d at 47-48 (lead opinion) (citing Laffey v. Northwest Airlines, Inc.," }, { "docid": "22474835", "title": "", "text": "claimed by appellees’ counsel regardless of the year in which the work was actually performed. This argument runs counter to a wealth of precedent. In Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989), the Supreme Court observed that “[c]learly, compensation received several years after the services were rendered — as it frequently is in complex civil rights litigation — is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings. We agree, therefore, that an appropriate adjustment for delay in payment — whether by the application of current rather than historic hourly rates or otherwise — is [entirely proper].” Id. at 283-84, 109 S.Ct. at 2469. We have also approved the use of current billing rates to “compensate for the delay in receiving payment. This adjustment [will] take into account lost interest and inflation.” Bouman v. Block, 940 F.2d 1211, 1235 (9th Cir.1991) (citation omitted). The City argues, finally, that the billing rates approved by the district court exceeded the rates charged by several of the appellees’ attorneys in their private practices and therefore constituted an abuse of discretion. We rejected this argument in White v. City of Richmond, 713 F.2d 458 (1983). “[W]e take judicial notice of the fact that many civil rights practitioners do not bill their clients at an hourly commercial rate. While evidence of counsel’s customary hourly rate may be considered by the District Court, it is not an abuse of discretion in this type of case to use the reasonable community standard that was employed here.” Id. at 461. Accord Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir.) (quoting White), cert. denied, 484 U.S. 990, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987). One factor utilized by the district court in its rate determination, the contingent nature of the fee arrangement, requires us to remand to the district court for a redetermination of the fee. In keeping with the law of this circuit at the time it rendered its decision, the district court deemed the" }, { "docid": "9530783", "title": "", "text": "816 F.2d at 396 (emphasis added). Neither case holds that fees for travel time must always be awarded at the full hourly rate. The District Court concluded that the rate for travel time should be lower in this case and we do not find that decision to run afoul of applicable law or to be unreasonable. The order of the District Court is AFFIRMED. . The Honorable Scott O. Wright, Chief United States District Judge for the Western District of Missouri. . In their briefs, Defendants primarily focus on the rates applied to the work of Sindel and Berger, and we tailor our comments in the text accordingly. We note here, however, that Defendants have not persuaded us that the District Court applied an unreasonable rate to the work of either Sindel’s partner or his associates. . The actual holding of Blum is somewhat narrower than its language, since, on its facts, Blum applies only to salaried attorneys employed by legal aid organizations. Blum \"did not decide whether the fee awards of private attorneys with an established billing rate must be calculated in the same manner” as those for salaried legal aid employees. Webb v. Maldonado, — U.S. -, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987) (opinion on denial of cert.) (White, J., dissenting). Nevertheless, we find Blum instructive on the importance of market rates and note that market rates have been a primary focus of our inquiries to ascertain the reasonableness of fee awards. See, e.g., Shakopee Mdewakanton Sioux v. City of Prior Lake, 771 F.2d 1153, 1160 (8th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1185, 89 L.Ed.2d 301 (1986); Jaquette v. Black Hawk County, 710 F.2d 455, 459 (8th Cir.1983); Avalon Cinema Corp. v. Thompson, 689 F.2d 137, 140 (8th Cir.1982). Accordingly, we give that factor due regard in relation to the rate applied not only (as we must) to Berger’s work but also Sindel’s. .Johnson called for consideration of twelve factors: (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service properly;" }, { "docid": "23035085", "title": "", "text": "statutes themselves distorts the true nature of Terris’ hourly rate. We are persuaded that Terris’ rates constitute a form of contingency billing, whereby the firm recovers a minimal fee if it loses and fair market prices via the fee shifting statutes if it prevails. Given its fee structure and the firm’s dependence on fee shifting statutes for payment, it is doubtful that Terris’ billing rates alone would be sufficient to attract competent counsel in the kinds of cases it handles. Furthermore, we are not at all persuaded by the economic approach of the Shakopee and the Cumberland Mountains courts, which see fee shifting statutes as a replacement for opportunity costs. As Chief Judge Wald observed in dissent, this argument proves too much. See Cumberland Mountains, 826 F.2d at 55 (Wald, C.J., concurring in part and dissenting in part). The lost opportunity analysis would have precluded any recovery (beyond the attorneys’ minimal salaries) under the facts of Blum, which involved salaried attorneys who charged their clients nothing for their work. Given the Supreme Court’s holding in Blum, that cannot be right. 2. The Micro-Market Rule A second approach, adopted by the Courts of Appeals for the Seventh and Eleventh Circuits and, which we call the “micro-market rule,” applies market rates but defines the market rather narrowly. In establishing the market for public interest legal work, rather than looking to the rates of attorneys of comparable skill and experience, these courts have looked to what public interest lawyers actually receive. Acknowledging that for-profit public interest law firms often depress their rates to accommodate plaintiffs who otherwise would be unable to sue, these courts nevertheless have looked to those prevailing rates, where available, to determine the market rate. The micro-market rate departs from actual billing rates when there is some indication that the billing rate is out of sync with the micro-market — in this case what the court believes the going rate for public interest work to be. See, e.g., Lightfoot v. Walker, 826 F.2d 516, 524 (7th Cir.1987) (rejecting an argument that the district court abused its discretion by failing to" }, { "docid": "7038512", "title": "", "text": "plaintiff’s counsel have exercised the necessary “billing judgment” by making a “good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1939-40. Accordingly, the Court will permit the following claimed hours: Randall J. Brubaker, Esq. 837.20 Beth Oswald, Esq. 335.55 Robert Gelbaum, Esq.136.70 Charles Elliott, Esq.24.10 Total Attorney Hours. 1333.55 Paralegals.58.15 B. Determination of Reasonable Hourly Rate To compute the lodestar, the next issue which must be determined is the “reasonable hourly rate” by which plaintiffs’ counsel should be compensated. In Blum v. Stenson, the Supreme Court held that a fee award is to be calculated “according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” 465 U.S. at 895, 104 S.Ct. 1546. As the Third Circuit held in Black Grievance Committee v. Philadelphia Elec. Co.: The reasonable value of an attorney’s time is the price that time normally commands in the marketplace, which is generally reflected in the attorney’s normal billing rate. 802 F.2d 648, 652 (3d Cir.1986); see also In re Fine Paper Antitrust Litigation, 751 F.2d 562, 590-91 (3d Cir.1984). However, in the recent case of SPIRG v. AT & T, the Third Circuit was confronted with the question of how to best effectuate and apply the Blum and Black Grievance holdings to a “unique genre of attorneys, who operate for profit but essentially rely on fee shifting statutes.” 842 F.2d at 1438. After evaluating alternative approaches, Judge Becker, writing for the Court, adopted the “community market rate” rule for determining fee awards pursuant to the provisions of the Clean Water Act: [U]nder the facts of this case, involving a for-profit public interest law firm ... that has an artificially low billing rate charged by attorneys of equivalent skill and experience performing work of similar complexity, rather than the firm’s billing rate, is the appropriate hourly rate for computing the lodestar. Id. at 450. The community market rate is to be established by “affidavits demonstrating ‘that the requested rates" }, { "docid": "14481483", "title": "", "text": "market rates in the relevant community. Student Pub. Interest Research Group v. AT & T Bell Labs., 842 F.2d 1436, 1448 (3d Cir.1988) (“SPIRG”). In SPIRG, we concluded that this rule (the “Community Market Rate” rule) represented “the best compromise among the conflicting policies behind the fee shifting statutes” and that it was “the simplest, most workable rule [available].” Id. What SPIRG did not resolve, however, was how we choose the “relevant community” for purposes of determining the appropriate billing rate for a public interest law firm. In this case, there are two obvious choices: Washington, DC, where the Terris firm is located, or northern New Jersey, where the underlying suit was litigated. Two decades ago, we commissioned a Task Force on court-awarded attorney fees that addressed this and numerous other questions. The Task Force recommended that we adopt the “forum rate” rule, whereby an “out-of-town lawyer would receive not the hourly rate prescribed by his district but rather the hourly rate prevailing in the forum in which the litigation is lodged.” Report of the Third Circuit Task Force on Court Awarded Attorney Fees, 108 F.R.D. 237, 261 (1985). The Task Force recommended that deviation from this rule be permitted “only when the need for ‘the special expertise of counsel from a distant district’ is shown or when local counsel are unwilling to handle the case.” Id. (footnote omitted). In recommending that we adopt the forum rate rule, the Task Force observed that it was “contrary to current Third Circuit practices,” id., citing our decisions in Cunningham v. City of McKeesport, 753 F.2d 262, 267 (3d Cir.1985) and In re Fine Paper Antitrust Litigation, 751 F.2d 562, 590-91 (3d Cir.1984). In Fine Paper, we reviewed a decision by the District Court for the Eastern District of Pennsylvania to award attorney fees based on a three-tiered hourly rate structure which did not take into account the market in which the attorney actually practiced. See 98 F.R.D. at 83. We reversed, finding that “the approach taken by the trial court in this case, of applying hypothetical national rates to all attorneys, regardless" }, { "docid": "23555956", "title": "", "text": "of $100 per hour for purposes of lodestar calculation), vacated on other grounds, 478 U.S. 1015, 106 S.Ct. 3324, 92 L.Ed.2d 731 (1986), original decision reinstated, 807 F.2d 49 (3d Cir.1986), cert. denied, 481 U.S. 1049, 107 S.Ct. 2179, 95 L.Ed.2d 836 (1987) with SPIRG, 842 F.2d at 1443-45 (rejecting approach of adopting attorneys’ actual billing rates for more flexible community market rate approach). In Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), the Supreme Court stated; The statute and legislative history establish that “reasonable fees” under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel. Id. at 895, 104 S.Ct. at 1547. Thus determination of the market rate first requires determination of- the relevant market. See SPIRG, 842 F.2d at 1448. The Air Force contends the relevant, market is southern New Jersey. The district court used all of New Jersey. On this appeal PIRG did not initially object to New Jersey as the market. This Court has yet to adopt any single, authoritative definition of the “relevant community.” See id. at 1442 n. 4 (reserving the question whether the market rate was the rate in the law firm’s community or the rate in the community in which the case is litigated). While we have never authoritatively resolved the issue, we initially appeared to favor a definition that was based on- the community in which the law firm was located as the relevant market. See In re Fine Paper Antitrust Litig., 751 F.2d at 590 (“Our premise has been that the reasonable value of an attorney’s time is the price that time normally commands in the marketplace for legal services in which those services are offered.”); see also Cunningham, 753 F.2d at 267 (“an attorney’s time is generally reflected in his normal billing rate”). In 1986, this Court appointed a task force that recommended adoption of “district-wide hourly rates for fee-setting purposes” under fee shifting statutes. See Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D." }, { "docid": "11618955", "title": "", "text": "that is the best way of ensuring that competent counsel will be available to all persons with bona fide civil rights claims. This means that judges awarding fees must make certain that attorneys are paid the full value that their efforts would receive on the open market in non-civil-rights cases, both by awarding them market-rate fees, and by awarding fees only for time reasonably expected.”) (Brennan, J. concurring in part and dissenting in part) (citations omitted); Washington, 89 F.3d at 1035 (3d Cir.1996) (\"The general rule is that a reasonable hourly rate is calculated according to the prevailing market rates in the community.”) (citations omitted); In re Busy Beaver Bldg. Ctrs., Inc., 19 F.3d 833, 853 (3d Cir.1994) (\"Like any sophisticated consumer of legal services, the ... court should compare the costs of ‘equivalent’ practitioners of the art (including their billing structures) as well as the applicant’s billing practices with ‘equivalent’ clients.”); Keenan v. City of Philadelphia, 983 F.2d 459, 475 (3d Cir.1992) (\"The district court was, of course, correct in stating that the market rate of compensation must determine the appropriate hourly rate for computing the lodestar. However, we conclude that § 1988 does not preclude use of a uniform billing method where such billing method produces market rates of compensation.”); Rode, 892 F.2d at 1183 (“Generally, a reasonable hourly rate is to be calculated according to the prevailing market rates in the relevant community.”); SPIRG, 842 F.2d at 1442 (\"Market rates have served as the prime focus of our inquiry in ascertaining reasonable attorneys’ fees.”); In re Fine Paper Antitrust Litig., 751 F.2d 562, 591 (3d Cir. 1984) (\"Our premise has been that the reasonable value of an attorney's time is the price that time normally commands in the marketplace for legal services in which those services are offered.”); Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir.1973) (\"A logical beginning in valuing an attorney's services is to fix a reasonable hourly rate for his time — taking into account of the attorney’s legal reputation and status (partner, associate).... [T]he" }, { "docid": "14481486", "title": "", "text": "upon an outside market rate at variance with the market rate of the site of the litigation, for we do not reach that issue.”). In no case since the Task Force Report was issued have we set aside a decision employing the forum rate rule on the ground that earlier decisions require courts to award fees on the basis of prevailing rates in the community in which the attorney practices. ICO nonetheless argues that Fine Paper held that the relevant community for determining an attorney’s billing rate is where the attorney practices, not the locus of the litigation. Thus, to the extent that these later cases conflict with our holding in Fine Paper, ICO claims that they impermissibly attempted to overrule that earlier decision. It is well settled in this Circuit that a three-judge panel may not overrule a decision by an earlier panel. See Third Circuit Internal Operating Procedure 9.1; O. Hommel Co. v. Ferro Corp., 659 F.2d 340, 354 (3d Cir.1981). Thus, if ICO is correct that Fine Paper held that we look to an attorney’s place of business to determine his or her hourly rate, then we must follow that decision. We do not think that it so holds. As noted above, Fine Paper held that it was error for a district court to apply “hypothetical national rates” in determining the size of a fee award. Thus, Fine Paper does not answer the question we address today, which is whether a court should look to prevailing rates in the attorney’s home community or the locus of the litigation in determining the appropriate compensation for an out-of-town attorney. We agree with the Task Force that, in most cases, the relevant rate is the prevailing rate in the forum of the litigation. We therefore hold that district courts in the Third Circuit should award attorney fees based on the “forum rate” rule as set forth in the Task Force Report. As noted above, the forum rate rule recommended by the Task Force contains two exceptions: first, “when the need for ‘the special expertise of counsel from a distant district’" }, { "docid": "8452904", "title": "", "text": "C. A. 9th Cir. Certiorari denied. Justice White, dissenting. In Blum v. Stenson, 465 U. S. 886 (1984), the Court defined what constitutes a “reasonable attorney’s fee” under 42 U. S. C. § 1988 for salaried attorneys employed by legal aid organizations. We held that the fee awards of such attorneys must be calculated on the basis of the prevailing community rate for similar services by attorneys of comparable skill, experience, and reputation. Id., at 895-896, and n. 11. We did not decide whether the fee awards of private attorneys with an established billing rate must be calculated in the same manner. Here, the Court of Appeals for the Ninth Circuit upheld an attorney’s fee award under 42 U. S. C. §2000e-5(k) based on an hourly rate that was consistent with the prevailing market rate but that substantially exceeded counsel’s own customary billing rate. Maldonado v. Lehman, 811 F. 2d 1341 (1987). The court expressly rejected the approach adopted by the Court of Appeals for the District of Columbia Circuit in Laffey v. Northwest Airlines, Inc., 241 U. S. App. D. C. 11, 746 F. 2d 4 (1984), cert. denied, 472 U. S. 1021 (1985), which held that an attorney’s customary billing rate must be used in calculating a fee award so long as that rate is not unusually high or low. It is true that the District of Columbia Circuit recently granted rehearing en banc in Save Our Cumberland Mountains, Inc. v. Hodel, 263 U. S. App. D. C. 409, 826 F. 2d 43 (1987), for the purpose of deciding whether Laffey ought to be reconsidered. The Cumberland Mountains case has been held in abeyance, however, pending the resolution of the petition for certiorari in this case. Hence, the conflict persists between the Ninth Circuit’s decision in this case and the District of Columbia Circuit’s decision in Laffey. It cannot be said with any certainty that the latter court will decide to overrule Laffey in whole or in part. In addition, there is some tension between the Ninth Circuit’s definition of a “reasonable” fee and other courts’ definition of" }, { "docid": "23035093", "title": "", "text": "notice of the fact that many civil rights practitioners do not bill their clients at an hourly commercial rate. While evidence of counsel’s customary hourly rate may be considered by the District Court, it is not an abuse of discretion in this type of case to use the reasonable community standard that was employed here. Id. at 461. The Court of Appeals for the Ninth Circuit has recently reaffirmed its adherence to community market rates in Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987). Although the district court in the case sub judice did not articulate its approach as such, it clearly adopted the community market rate rule. As discussed above, the district court relied on affidavits from partners in Washington, D.C. law firms who engage in complex federal litigation. This approach has one significant drawback: in some cases, it may end up compensating public interest attorneys beyond the amount necessary to attract them to the case. The purpose of the fee shifting statutes is to provide reasonable fees, which at one point the Senate Report defined as “adequate to attract competent counsel, but which do not produce windfalls to attorneys.” Senate Report at 6, U.S.Code Cong. & Admin.News 1976, p. 5913. See also Delaware Valley II, 107 S.Ct. at 3090-91 (O’Connor, J., concurring) (emphasizing that the essential focus of attorneys’ fees awards must be on attracting adequate counsel); Delaware Valley I, 106 S.Ct. at 3098 (“[t]hese [fee shifting] statutes were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client”). In awarding local market rates for the community, the community market rate rule does not account for the possibility that such high rates may not always be necessary to attract competent counsel and that other factors such as the psychological benefit derived by attorneys who work for public interest firms may attract counsel to public interest litigation. Using the term" }, { "docid": "23035086", "title": "", "text": "Blum, that cannot be right. 2. The Micro-Market Rule A second approach, adopted by the Courts of Appeals for the Seventh and Eleventh Circuits and, which we call the “micro-market rule,” applies market rates but defines the market rather narrowly. In establishing the market for public interest legal work, rather than looking to the rates of attorneys of comparable skill and experience, these courts have looked to what public interest lawyers actually receive. Acknowledging that for-profit public interest law firms often depress their rates to accommodate plaintiffs who otherwise would be unable to sue, these courts nevertheless have looked to those prevailing rates, where available, to determine the market rate. The micro-market rate departs from actual billing rates when there is some indication that the billing rate is out of sync with the micro-market — in this case what the court believes the going rate for public interest work to be. See, e.g., Lightfoot v. Walker, 826 F.2d 516, 524 (7th Cir.1987) (rejecting an argument that the district court abused its discretion by failing to apply an attorney’s private practice rate of $70 per hour as a “rate ceiling” for fee recovery, but nevertheless applying a tailored market rate for Title VII litigation); Mayson v. Pierce, 806 F.2d 1556 (11th Cir.1987) (per curiam) (reducing an attorney's normal billing rate to conform with market rate for Title VII work, over strong dissent by Judge Clark); Tomazzoli v. Sheedy, 804 F.2d 93, 98-99 (7th Cir.1986) (indicating a strong preference for relying on actual billing rates but holding the relevant market rate for counsel in a § 1988 suit would be the going rate in the community for “civil rights matters”); see also Coulter v. Tennessee, 805 F.2d 146, 148-50 (6th Cir.1986) (awarding community rates for Title VII actions), cert. denied, — U.S. —, 107 S.Ct. 3186, 96 L.Ed.2d 674 (1987). At first blush, the micro-market approach seems sound. It seems to follow the mandate of Blum, relying on billing rates where they appear to reflect the market, and substituting a tailored market rate where billing rates are unavailable or are unreliable proxies" }, { "docid": "23035087", "title": "", "text": "apply an attorney’s private practice rate of $70 per hour as a “rate ceiling” for fee recovery, but nevertheless applying a tailored market rate for Title VII litigation); Mayson v. Pierce, 806 F.2d 1556 (11th Cir.1987) (per curiam) (reducing an attorney's normal billing rate to conform with market rate for Title VII work, over strong dissent by Judge Clark); Tomazzoli v. Sheedy, 804 F.2d 93, 98-99 (7th Cir.1986) (indicating a strong preference for relying on actual billing rates but holding the relevant market rate for counsel in a § 1988 suit would be the going rate in the community for “civil rights matters”); see also Coulter v. Tennessee, 805 F.2d 146, 148-50 (6th Cir.1986) (awarding community rates for Title VII actions), cert. denied, — U.S. —, 107 S.Ct. 3186, 96 L.Ed.2d 674 (1987). At first blush, the micro-market approach seems sound. It seems to follow the mandate of Blum, relying on billing rates where they appear to reflect the market, and substituting a tailored market rate where billing rates are unavailable or are unreliable proxies for the rate attorneys could command in litigating public interest cases. Despite its obvious appeal, however, the micro market-rule is premised on a number of theoretical fallacies — the assumptions that: (1) an independent public interest market exists; (2) this market generates reasonable and fair fees; and (3) courts can rely upon this market in granting fees pursuant to fee shifting statutes. Unfortunately, we cannot accept these propositions. As we see it, in the context of fee shifting, no such independent market exists; rather, the micro-market for public interest work is largely rooted in court-generated fee shifting awards. Cf. Norman v. Housing Authority, 836 F.2d 1292, 1300 (11th Cir.1988) (“The court recognizes that few practioners who regularly defend the poor and disadvantaged have the opportunity to bill and collect on an hourly basis. Accordingly, it may be virtually impossible to establish a prevailing market rate for such services.”). Courts that try to establish public interest market rates by looking to the going rate for public interest work therefore do not examine an independently operating market" }, { "docid": "23035092", "title": "", "text": "would have to offer guidance on how a district court could make such a determination. As discussed infra at 1454-55, we believe that the questions of when a contingency multiplier is available and how much is deserved are very complicated and difficult to resolve. Given the general perception that such fee calculations already squander too much precious judicial attention, we determine that we could not adopt this modified billing rate approach absent some simple and workable means for ascertaining the correct contingency multiplier. 4. The Community Market Rate Rule The last approach, which we call the “community market rate” rule, reads the Supreme Court’s mandate in Blum as requiring courts to assess the experience and skill of the attorneys and compare their rates to those of comparable lawyers in the private business sphere. For example, in White v. City of Richmond, 713 F.2d 458 (9th Cir.1983), the court held that application of market rates without regard to public interest attorneys’ regular billing rates was not an abuse of discretion. The court explained: [W]e take judicial notice of the fact that many civil rights practitioners do not bill their clients at an hourly commercial rate. While evidence of counsel’s customary hourly rate may be considered by the District Court, it is not an abuse of discretion in this type of case to use the reasonable community standard that was employed here. Id. at 461. The Court of Appeals for the Ninth Circuit has recently reaffirmed its adherence to community market rates in Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987). Although the district court in the case sub judice did not articulate its approach as such, it clearly adopted the community market rate rule. As discussed above, the district court relied on affidavits from partners in Washington, D.C. law firms who engage in complex federal litigation. This approach has one significant drawback: in some cases, it may end up compensating public interest attorneys beyond the amount necessary to attract them to the case. The purpose of the fee" }, { "docid": "22474836", "title": "", "text": "the district court exceeded the rates charged by several of the appellees’ attorneys in their private practices and therefore constituted an abuse of discretion. We rejected this argument in White v. City of Richmond, 713 F.2d 458 (1983). “[W]e take judicial notice of the fact that many civil rights practitioners do not bill their clients at an hourly commercial rate. While evidence of counsel’s customary hourly rate may be considered by the District Court, it is not an abuse of discretion in this type of case to use the reasonable community standard that was employed here.” Id. at 461. Accord Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir.) (quoting White), cert. denied, 484 U.S. 990, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987). One factor utilized by the district court in its rate determination, the contingent nature of the fee arrangement, requires us to remand to the district court for a redetermination of the fee. In keeping with the law of this circuit at the time it rendered its decision, the district court deemed the fact that appellees’ counsel undertook this case on a contingent basis, and therefore bore the risk of nonpayment in the event of failure, to constitute a special circumstance warranting the enhancement of the lodestar fee. However, in its recent decision in City of Burlington v. Dague, — U.S. -, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), the Supreme Court declared that the typical federal fee-shifting statutes, including 42 U.S.C. § 2000e-5(k), do not allow for upward adjustments to a lodestar fee on the basis that prevailing party’s counsel incurred the risk of nonpayment. The district court referred to the factor of contingency at two points in its fee determination. It relied on contingency to apply a multiplier to the lodestar fee; Dague requires the elimination of that multiplier. The district court also mentioned contingency as a consideration in listing the Johnson-Kerr factors which it thought relevant to establishing appropriate billing rates. 748 F.Supp. at 1427. While the Dague Court did not speak directly to this point, we believe that its rejection of contingency as a" }, { "docid": "23035078", "title": "", "text": "Furthermore, Blum noted that the Senate Report cited with favor Stanford Daily v. Zurcher, 64 F.R.D. 680, 681 (N.D.Cal.1974), which held that courts “must avoid ... decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return.” See 465 U.S. at 895, 104 S.Ct. at 1547. See also Miele v. New York State Teamsters Conference Pension & Retirement Fund, 831 F.2d 407 (2d Cir.1987) (holding that Blum mandated using rates of the private bar in calculating the market rates of public interest attorneys and reversing contrary authority in the Court of Appeals for the Second Circuit). Given that Blum requires “market rates,” our question must be how to apply that concept under the unique facts of this case. We note that other courts have struggled with the very issue we consider here in trying to establish a fair rate governing for-profit public interest law firms. Although the caselaw is far from clear, we discern three distinct approaches among the courts of appeals and we have struggled with a fourth. In our view, none of these satisfactorily resolve this difficult question, but they all attest to its complexity. See Webb v. Maldonado, — U.S. —, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987) (opinion sur denial of cert.) (White, J., dissenting) (noting tension within the circuits concerning calculation of reasonable attorneys fees for attorneys with established billing rates). We discuss each of these approaches. 1. The Billing Rate Rule The first approach, which we call the “billing rate rule,” forged by the District of Columbia Circuit and followed by the Eighth Circuit, mandates using actual billing rates whenever they exist. The billing rate rule rejects a market rate based on the local market in favor of applying the attorneys’ actual billing rates, whenever such rates exist, even where attorneys set their rates artificially low to serve the public interest. In Shakopee Mdewakanton Sioux Community v. City of Prior Lake, 771 F.2d 1153 (8th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1185, 89 L.Ed.2d 301 (1986)," }, { "docid": "9530784", "title": "", "text": "an established billing rate must be calculated in the same manner” as those for salaried legal aid employees. Webb v. Maldonado, — U.S. -, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987) (opinion on denial of cert.) (White, J., dissenting). Nevertheless, we find Blum instructive on the importance of market rates and note that market rates have been a primary focus of our inquiries to ascertain the reasonableness of fee awards. See, e.g., Shakopee Mdewakanton Sioux v. City of Prior Lake, 771 F.2d 1153, 1160 (8th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1185, 89 L.Ed.2d 301 (1986); Jaquette v. Black Hawk County, 710 F.2d 455, 459 (8th Cir.1983); Avalon Cinema Corp. v. Thompson, 689 F.2d 137, 140 (8th Cir.1982). Accordingly, we give that factor due regard in relation to the rate applied not only (as we must) to Berger’s work but also Sindel’s. .Johnson called for consideration of twelve factors: (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the 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 the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. . Most of the Johnson factors had been used to calculate multipliers for enhancing lodestar figures, but in Delaware Valley the Supreme Court said that \"most, if not all, of the relevant factors” should be considered when setting the lodestar components. Delaware Valley, 478 U.S. at 565-66, 106 S.Ct. at 3098-99. . We are not at all convinced that central Missouri is the relevant \"community” under Blum. Blum does not define \"community” and the argument for an expansive reading of “communi ty” is particularly strong in a case such as this, since" } ]

[ { "docid": "14194208", "title": "", "text": "Wal-Mart did not waive its argument. 3. Attorney’s fees To determine whether the district court’s award of attorney’s fees was appropriate, we must decide whether the district court properly found that it lacked subject matter jurisdiction. When determining whether federal jurisdiction exists, we must follow the well-pleaded complaint rule, which states that federal question jurisdiction exists only “when the plaintiffs well-pleaded complaint raises issues of federal law.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1486 (7th Cir.1996) (“The issues raised in the plaintiffs complaint, not those added in the defendant’s response, control the litigation.”). “The paramount policies embodied in the well-pleaded complaint rule [are] that the plaintiff is master of the complaint ... and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). However, there is an exception to the well-pleaded complaint rule, known as the “complete preemption doctrine” which provides that, where Congress has completely preempted a given area of state law, a plaintiffs state law claim will be “recharacterized” as a federal claim so that removal becomes proper. See Avco Corp. v. Aero Lodge No. 735 Int’l Ass’n of Machinists and Aerospace Workers, 390 U.S. 557, 560, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). The Supreme Court has deter mined that all state actions falling within the scope of section 502(a) of ERISA, 29 U.S.C. § 1132(a), are preempted under the complete preemption doctrine. Taylor, 481 U.S. at 67, 107 S.Ct. 1542. Section 502(a) provides that “[a] civil action maybe brought — (1) by a participant or beneficiary- — (A) for the relief provided in subsection (c) of this section, or (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)." } ]

[ { "docid": "3104545", "title": "", "text": "plaintiff properly pleads only a state law cause of action.” Gutierrez v. Flores, 543 F.3d 248, 252 (5th Cir.2008) (quoting Bernhard, 523 F.3d at 551). That federal law might provide a defense to a state law cause of action does not create federal question jurisdiction. Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). An exception to the well-pleaded complaint rule arises when Congress “so completely preempts] a particular area that any civil complaint raising this select group of claims is necessarily federal in character.” Gutierrez, 543 F.3d at 252 (quoting Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir.2000)). Under the “complete preemption” doctrine, “what otherwise appears as merely a state law claim is converted to a claim ‘arising under’ federal law for jurisdictional purposes because the federal statute so forcibly and completely displaces state law that the plaintiffs cause of action is either wholly federal or nothing at all.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 330 (5th Cir.2008) (internal quotation marks and brackets omitted); see also Franks, 593 F.3d at 407. “The question in complete preemption analysis is whether Congress intended the federal cause of action to be the exclusive cause of action for the particular claims asserted under state law.” Barrois, 533 F.3d at 331; see also Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Complete preemption must be distinguished from “defensive preemption” (i.e., “conflict preemption” or “ordinary preemption”). Barrois, 533 F.3d at 331. Defensive preemption does not create federal jurisdiction and simply “declares the primacy of federal law, regardless of the forum or the claim.” Id. “As a general matter, complete preemption is less common and more extraordinary than defensive or ordinary preemption.” Id. Indeed, complete preemption is a “narrow” exception to the well-pleaded complaint rule. Beneficial, 539 U.S. at 5, 123 S.Ct. 2058. In determining the nature and reach of federal preemption, Congress’s intent is the “ultimate touchstone.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700" }, { "docid": "23572173", "title": "", "text": "action from state court to federal court only if the plaintiffs allegations establish “original jurisdiction founded on a claim or right arising under” federal law. 28 U.S.C. § 1441(b). “To determine whether the claim arises under federal law, we examine the ‘well pleaded’ allegations of the complaint and ignore potential defenses[.]” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Even “a defense that relies on the preclusive effect of a prior federal judgment or the pre-emptive effect of a federal statute will not provide a basis for removal.” Id. (citations omitted). There are exceptions to the well-pleaded complaint rule. Id. One exception is the artful-pleading doctrine: plaintiffs may not “avoid removal jurisdiction by artfully casting their essentially federal law claims as state-law claims.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) (quotation marks, citations, and edits omitted). A related exception is the complete-preemption doctrine: removal is proper “when a federal statute wholly displaces the state-law cause of action through complete pre-emption.” Beneficial Nat’l Bank, 539 U.S. at 8, 123 S.Ct. 2058. A third exception is the substantial-federal-question doctrine, which applies “where the vindication of a right under state law necessarily turn[s] on some construction of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Thus, under limited circumstances, a defendant may force a plaintiff into federal court despite the plaintiffs desire to proceed in state court. We are mindful that state courts are generally presumed competent to interpret and apply federal law. See Zwickler v. Koota, 389 U.S. 241, 245, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) (“During most of the Nation’s first century, Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws.”). As the Seventh Circuit recently noted, “there is nothing unusual about a court having to decide issues that arise under the law of other jurisdictions; otherwise there would be no field called ‘conflict of laws’ and no rule" }, { "docid": "20664239", "title": "", "text": "to the well-pleaded complaint rule with respect to an anticipated preemption defense: the Supreme Court has recognized that “ ‘when a federal statute wholly displaces the state-law cause of action through complete preemption,’ the state claim can be removed.” Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (quoting Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003)). In other words, “Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). “Under this principle, the preemptive force of a statute can be so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” Heintzman v. Amalgamated Transit Union Int'l, 825 F.Supp.2d 161, 166 (D.D.C.2011) (quoting Metro. Life Ins. Co., 481 U.S. at 65, 107 S.Ct. 1542); see also Beneficial Nat’l Bank, 539 U.S. at 8, 123 S.Ct. 2058 (“When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.”). B. Removal Was Proper Because Section 301 Completely Preempts MEBA’s State Law Claims The jurisdictional issue in the instant case turns on the reach of federal labor law, and in particular, the preemptive effect of section 301 of the LMRA. That statute grants federal courts jurisdiction over lawsuits alleging labor contract violations, and specifically provides that [s]uits for violation of contracts between an employer and a labor organization representing employees in an' industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a). The Supreme Court has acknowledged" }, { "docid": "8407553", "title": "", "text": "by not asserting federal claims in state proceedings. Appellants are incorrect. Whether federal courts have federal question jurisdiction over an action is typically governed by the “well-pleaded complaint” rule, pursuant to which federal question jurisdiction exists only if “plaintiffs statement of his own cause of action shows that it is based” on federal law. Vaden v. Discover Bank, — U.S. -, -, 129 S.Ct. 1262, 1275, 173 L.Ed.2d 206 (2009); Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Under the well-pleaded complaint rule, then, plaintiff is the master of his complaint and is free to avoid federal jurisdiction by “pleading only state claims even where a federal claim is also available.” Marcus, 138 F.3d at 52. However, there exists a corollary to the well-pleaded corn- plaint rule — the “artful pleading” rule— pursuant to which plaintiff cannot avoid removal by declining to plead “necessary federal questions.” Rivet v. Regions Bank, 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). If the artful pleading rule applies, courts look beyond the face of an “artfully pled” complaint to determine whether plaintiff has “cloth[ed] a federal law claim in state garb” by pleading state law claims that actually arise under federal law. Travelers Indem. Co. v. Sarkisian, 794 F.2d 754, 758 (2d Cir.1986). If such is the case, the reviewing court will “uphold removal even though no federal question appears on the face of the complaint.” Rivet, 522 U.S. at 475, 118 S.Ct. 921. The artful pleading rule applies when Congress has either (1) so completely preempted, or entirely substituted, a federal law cause of action for a state one that plaintiff cannot avoid removal by declining to plead “necessary federal questions,” id., or (2) expressly provided for the removal of particular actions asserting state law claims in state court, see Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003) (explaining the Price-Anderson Act, 42 U.S.C. § 2014(hh), presents an exception to the well-pleaded complaint rule because it “expressly provides for removal of [tort actions arising out" }, { "docid": "9852640", "title": "", "text": "state-law claims for unpaid wages are a FICA refund claim in disguise. Second, if Berera asserted a FICA refund claim, the question is whether § 7422(a) dictates dismissal of said claim for failure to exhaust remedies with the IRS. Third, we must consider whether Mesa timely removed the case. We answer these questions affirmatively. A. Federal Question Jurisdiction—Artful Pleading Where, as here, there is no diversity jurisdiction, a defendant may remove an action to federal court only if the plaintiffs allegations establish federal question jurisdiction. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir.2007). To determine whether federal question jurisdiction exists, we consider the “well-pleaded” allegations of the complaint. Id. (citation omitted) (internal quotation marks omitted). Under the well-pleaded complaint rule, the plaintiff “is master to decide what law he will rely upon.” Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 515 (6th Cir.2003) (citation omitted) (internal quotation marks omit ted). Thus, ordinarily, the plaintiff may obviate removal to federal court by exclusively pleading state-law claims. See Caterpillar Inc. v. Williams, 482 U.S. 386, 399, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (“[T]he plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court.”); Loftis, 342 F.3d at 515 (citation omitted) (internal quotation marks omitted) (“Generally, a state law claim cannot be recharacterized as a federal claim for the purpose of removal.”). The corollary of this rule is that federal question jurisdiction exists when the plaintiffs “statement of his own cause of action shows that it is based upon [federal law].” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003) (citation omitted) (internal quotation marks omitted). The well-pleaded complaint rule has exceptions. Mikulski, 501 F.3d at 560. One is the artful-pleading doctrine. Id. Under the artful-pleading doctrine, “plaintiffs may not avoid removal jurisdiction by artfully casting their essentially federal law claims as state-law claims.” Id. (citation omitted) (internal quotation marks omitted). Where it appears that the plaintiff may have carefully crafted her complaint to circumvent federal jurisdiction, “we consider whether the facts alleged" }, { "docid": "10654222", "title": "", "text": "the plaintiffs statement of his own cause of action shows that it is based upon those laws or [the] Constitution. It is not enough that the plaintiff alleges some an ticipated defense to his [state] cause of action and asserts that the defense is invalidated by some provision of [federal law].” Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908). In this case, Plaintiffs Complaint states only claims under the WVCCPA, a state law, and mentions no federal cause of action. “As a general rule, absent diversity jurisdiction, a case •will not be removable if the complaint does not affirmatively allege a federal claim.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). However, certain exceptions to this “well pleaded complaint” rule do exist. For instance, “[w]hen [a] federal statute completely pre-empts [a] state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.” Id. at 8, 123 S.Ct. 2058. Under the “complete preemption” doctrine, such a case is removable pursuant to 28 U.S.C. § 1441(b). Complete preemption removal is subject to the “general principle that defendants seeking removal under the doctrine of complete preemption bear a significant burden ... as we must construe removal strictly, reasonable doubts must be resolved against the complete preemption basis for it.” Lontz v. Tharp, 413 F.3d 435, 441 (4th Cir.2005) (quoting Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (2005)). Defendants argue that portions of the Complaint fall within the narrow scope of complete preemption because they are, in effect, challenges to the rate of interest: usury claims. In Beneficial National Bank v. Anderson, the Supreme Court held that sections 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85-86, completely preempt state-law usury claims against national banks. 539 U.S. at 6, 123 S.Ct. 2058. Section 85, titled “rate of interest on loans, discounts and purchases,” provides that “associations” may “take, receive," }, { "docid": "23572172", "title": "", "text": "tax law?” This court granted the rehearing and vacated the panel opinion. II. When a decision on subject-matter jurisdiction concerns pure questions of law or application of law to the facts, this court conducts a de novo review. Rodriguez v. Tenn. Laborers Health & Welfare Fund, 463 F.3d 473, 475 (6th Cir.2006). If the district court’s jurisdictional ruling was based on the resolution of factual disputes, then we review those findings for clear error. Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir.2005). The issue before us in this case is primarily a question of law or an application of the law to the given circumstances. The district court produced few factual findings in resolving the jurisdictional question in this case. This is a case in which Ohio citizens sued an Ohio corporation in Ohio state court, and the defendant corporation removed the case to federal court. Let there be no doubt that the plaintiffs would prefer to be in state court. In the absence of diversity, a defendant may remove a civil action from state court to federal court only if the plaintiffs allegations establish “original jurisdiction founded on a claim or right arising under” federal law. 28 U.S.C. § 1441(b). “To determine whether the claim arises under federal law, we examine the ‘well pleaded’ allegations of the complaint and ignore potential defenses[.]” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Even “a defense that relies on the preclusive effect of a prior federal judgment or the pre-emptive effect of a federal statute will not provide a basis for removal.” Id. (citations omitted). There are exceptions to the well-pleaded complaint rule. Id. One exception is the artful-pleading doctrine: plaintiffs may not “avoid removal jurisdiction by artfully casting their essentially federal law claims as state-law claims.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) (quotation marks, citations, and edits omitted). A related exception is the complete-preemption doctrine: removal is proper “when a federal statute wholly displaces the state-law cause" }, { "docid": "7423034", "title": "", "text": "comply with the Clean Air Act, was to use MTBE as a gasoline additive. Congress and the EPA therefore effectively directed defendants to use, manufacture and/or sell gasoline that contains MTBE. See id. ¶¶ 19, 23, 34. II. APPLICABLE LAW A. General Principles A defendant seeking removal bears the burden of establishing federal subject matter jurisdiction. See Carson v. Dunham, 121 U.S. 421, 425-26, 7 S.Ct. 1030, 30 L.Ed. 992 (1887); Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921). Moreover, the rules for removal are strictly construed. See Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 31, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002). It is well-established that “[t]o determine whether the claim arises under federal law, [courts] examine the ‘well pleaded’ allegations of the complaint and ignore potential defenses: ‘a suit arises under the Constitution and laws of the United States only when the plaintiffs statement of his own cause of action shows that it is based upon those laws or that Constitution.’ ” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1 (2003) (quoting Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908)). “As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.” Id. at 2062. There are, however, two exceptions to the general rule. First, a state law claim may be removed to federal court when the claim is completely preempted by federal law. “When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. This claim is then removable under 28 U.S.C. § 1441(b), which authorizes any claim that ‘arises under’ federal law to be removed to federal court.” Beneficial Nat’l Bank, 123 S.Ct. at 2063. The Supreme Court has found “complete preemption” in only two types of cases: certain" }, { "docid": "3764672", "title": "", "text": "law, the Court must “examine the ‘well pleaded’ allegations of the complaint and ignore potential defenses.” Id. (citing Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908)). Under the “well-pleaded complaint rule,” federal question jurisdiction “exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The plaintiff is master of the claim and may rely exclusively on state law to avoid federal question jurisdiction. See id. If the plaintiffs claim does not rest on a federal question, a defendant generally may not remove a case to federal court based on a federal defense, even if the defense is preemption. See Beneficial Nat’l Bank v. Anderson, — U.S. -, -, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1; Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). A corollary to the well-pleaded complaint rule, however, provides for removal based on .complete federal preemption. Under this principle, the preemptive force of a statute can be so “extraordinary” that it “converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). “When the federal statute completely preempts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.” Beneficial National Bank v. Anderson, — U.S.-,-, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1. Under the complete preemption corollary, the Court properly exercises jurisdiction over plaintiffs claim. Section 301 of the LMRA not only preempts state law but also authorizes removal of claims that purported to seek relief only under state law. See Beneficial National Bank v. Anderson, — U.S. -, -, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1, (citing Avco Corp. v. Aero" }, { "docid": "6659111", "title": "", "text": "147, 121 S.Ct. 1322 (quotations and citations omitted). This preemption provision does not apply “if the state law has only a tenuous, remote, or peripheral connection with covered plans, as is the case with many laws of general applicability.” District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 130 n. 1, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992) (quotations and citations omitted); see also Guidry v. Sheet Metal Workers Nat’l Pension Fund, 39 F.3d 1078, 1084 (10th Cir.1994) (en banc) (same). B. “Complete Preemption” Under ERISA The Supreme Court has explained, “Only state court actions that originally could have been filed in federal court may be removed to federal court by the defendant. Absent diversity of citizenship, federal-question jurisdiction is required.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). “The presence or absence of federal question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Id. “The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Id. The general rule is that a federal defense, even one relying on the preclusive effect of a federal statute, is not enough to authorize removal to federal court. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). However, the Supreme Court has recognized an exception or “independent corollary” to the well-pleaded complaint rule known as the “complete pre-emption” doctrine. Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425. Among the first cases to recognize this doctrine was Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), where the Court held that the state court suit to enjoin a union strike under state law was properly removed because it arose under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, which grants federal jurisdiction over suits for violations of collective bargaining agreements." }, { "docid": "12873780", "title": "", "text": "rule, “a federal court has original or removal jurisdiction only if a federal ques tion appears on the face of the plaintiffs well-pleaded complaint; generally, there is no federal jurisdiction if the plaintiff properly pleads only a state law cause of action.” Bernhard v. Whitney Nat’l Bank, 523 F.3d 546, 551 (5th Cir.2008). “[T]he fact that federal law may provide a defense to a state claim is insufficient to establish federal question jurisdiction.” Id. at 550. In his original complaint, Gutierrez pleaded libel, libel per se, and intentional infliction of emotional distress. These causes of action arise under Texas statutory and common law. See Tex. Civ. Prac. & Rem.Code Ann. § 73.001 (2005) (libel); Doubleday & Co. v. Rogers, 674 S.W.2d 751, 759 (Tex.1984) (libel per se); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993) (intentional infliction of emotional distress). Appellees correctly note, however, that “[a] corollary to the well-pleaded complaint doctrine is that Congress may so completely preempt a particular area that any civil complaint raising this select group of claims is necessarily federal in character.” Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir.2000) (internal quotation omitted). This Circuit has stated that in order to establish complete preemption, the defendant must show that: (1) the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law; (2) there is -a specific jurisdictional grant to the federal courts for enforcement of the right; and (3) there is a clear Congressional intent that claims brought under the federal law be removable. Id. (internal citation omitted). This test for complete preemption was subsequently clarified by the Supreme Court in Beneficial National Bank v. Anderson, 539 U.S. 1, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003), which shifted the focus of the last part of the test from Congress’s intent that the claim be removable, to Congress’s intent that the federal action be exclusive. Bernhard v. Whitney Nat. Bank, 523 F.3d 546, 553 (5th Cir.2008) (citing Beneficial, 539 U.S. at 11, 123 S.Ct. 2058); see also Hoskins v. Bekins Van" }, { "docid": "12682173", "title": "", "text": "de novo. Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir.1996). The general rule — known as the “well-pleaded complaint rule” — is that a complaint must state on its face a federal cause of action in order for the action to be removable on the basis of federal-question jurisdiction. Id. (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). Typically, the existence of a federal defense, including a defense of preemption (hereinafter “ordinary preemption”), does not create federal-question jurisdiction. Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004); Johnson v. MFA Petroleum Co., 701 F.3d 243, 247 (8th Cir.2012). Under an exception or corollary to the well-pleaded complaint rule, however, a state-law claim may be removed to federal court when a federal statute “wholly displaces” the state-law cause of action, resulting in “complete preemption.” Davila, 542 U.S. at 207-08, 124 S.Ct. 2488; Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). This is so because when a federal statute completely preempts a state-law cause of action, the state-law claim “is properly ‘recharacterized’ as a complaint arising under federal law.” See Hull v. Fallon, 188 F.3d 939, 942 (8th Cir.1999) (quoting Rice v. Panchal, 65 F.3d 637, 640 n. 2 (7th Cir.1995)). Complete preemption is rare and occurs only when a federal statute has extraordinary preemptive power. See MFA Petroleum, 701 F.3d at 247-48 (citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). Under the complete preemption doctrine, a claim, despite a plaintiffs attempt to plead it in terms of state law, “is in reality based on” and “arises under” federal law. Beneficial Nat’l Bank, 539 U.S. at 8, 123 S.Ct. 2058. “A conclusion that there is complete preemption effectively maintains that ‘the plaintiff has simply brought a mislabeled federal claim, which may be asserted under some federal statute.’ ” MFA Petroleum, 701 F.3d at 247 (quoting King v. Marriott Int’l Inc., 337 F.3d 421," }, { "docid": "10542786", "title": "", "text": "124 S.Ct. 2488, 159 L.Ed.2d 312 (2004)). Complete preemption, therefore, creates an exception to the rule that courts look only to the plaintiff’s well-pleaded complaint to determine whether federal jurisdiction exists. If the complaint pleads a state-law claim that is completely preempted by federal law, the claim is removable to federal court. Id. at 596-97. The Supreme Court has recognized only three federal statutes that completely preempt analogous state-law actions: § 301 of the Labor Management Relations Act, § 502(a) of the Employee Retirement Income Security Act, and §§ 85-86 of the National Bank Act. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 7-11, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). We have likewise recognized the narrowness of the doctrine, applying complete preemption only where “Congress clearly intended completely to replace state law with federal law and create a federal forum.” Adkins, 326 F.3d at 835 (quotation omitted). A prerequisite to complete preemption is identifying a federal cause of action that “includes the same ingredients as the state claim and provides some recovery.” Id. (quotation omitted). Examining the interplay between the Bankruptcy Code and Nelson’s state-law claims of civil conspiracy and tortious interference, we cannot identify any Code provision that provides an “exclusive cause of action” for the defendants’ alleged filing for bankruptcy for the unlawful purpose of enriching themselves. Beneficial Nat’l Bank, 539 U.S. at 8, 123 S.Ct. 2058. This lack of an express federal remedy indicates that Nelson’s state-law claims are not completely preempted. See Nelson v. Stewart, 422 F.3d 463, 474 (7th Cir.2005) (finding that a Code provision that designated a representative for the debtor’s retirees in Chapter 11 proceedings, but that did not “purport to provide any federal cause of action for inadequate representation,” did not completely preempt the retirees’ state-law claims for unfair representation); Adkins, 326 F.3d at 835 (noting the absence of a federal cause of action under the Locomotive Inspection Act that would completely preempt the state tort claims of victims of a train collision). We do not deny that the bankruptcy statutes have significant preemptive force. As explained by the Ninth" }, { "docid": "8697071", "title": "", "text": "& T Wireless Servs., Ina, 205 F.3d 983, 986 (7th Cir.2000) (citing Franchise Tax Bd. of California v. Constr. Laborers Vacation Trust for S. California, 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). The plaintiff, as the master of his own complaint, may avoid federal jurisdiction by pleading only state-law claims. Id. Most often, a defendant raises federal preemption as a defense to a state-law action. Caterpillar Inc., 482 U.S. at 392, 107 S.Ct. 2425. A case may not be removed, however, based on a federal defense, “even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Id.; see Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). “On occasion, the Court has concluded that the preemptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425 (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). This “independent corollary” to the well-pleaded complaint rule is known as the “complete preemption” doctrine. Id. “Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Id.; see Beneficial Nat’l Bank, 539 U.S. at 8, 123 S.Ct. 2058 (“When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.”). In such situations, the federal statute “not only preempt[s] state law but also authorized removal of actions that sought relief only under state law.” Beneficial Nat’l Bank, 539 U.S. at 6-7, 123 S.Ct. 2058. C. Complete Preemption 1. The Supreme Court has applied the complete preemption doctrine in cases that raise" }, { "docid": "11879166", "title": "", "text": "or nothing at all. Third, the Railroad argues that the FRSA also completely preempts any state law claim to a right of passage. Fourth, the Railroad argues that a substantial and disputed federal question underlies its complaint, thus establishing federal question jurisdiction. We consider and reject each of these claims below. A The Railroad first argues that federal question jurisdiction is established because it seeks declaratory and injunctive relief from state regulation on the ground that the state regulation is preempted by federal law. The federal question statute, 28 U.S.C. § 1331, provides district courts with “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” To determine whether a case is one “arising under” federal law for these purposes, we ordinarily apply the well-pleaded complaint rule. PCI Transp., 418 F.3d at 543; Hoskins, 343 F.3d at 772. Pursuant to the well-pleaded complaint rule: [W]hether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, ... must be determined from what necessarily appears in the plaintiffs statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose. Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (alterations in original) (quoting Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914)); Shelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 672, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). The well-pleaded complaint rule focuses on whether the plaintiff has affirmatively alleged a federal claim, thus providing a basis for federal jurisdiction; anticipated or potential defenses, including defenses based on federal preemption, do not provide a basis for federal question jurisdiction. PCI Transp., 418 F.3d at 543 (citing Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003)); see also Caterpillar Inc. v. Williams, 482 U.S. 386," }, { "docid": "22471935", "title": "", "text": "law under the act. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808-09, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (interpreting § 1338(a) in the patent context). The claims established by the well-pleaded complaint must necessarily be determined from the plaintiffs statement of his or her own claim, not including statements raised in anticipation or avoidance of possible defenses that may be interposed. See id. Plaintiffs have not expressly pleaded copyright violations anywhere in their complaint. They have alleged a number of state law claims, however, that could potentially be preempted by the Copyright Act. In particular, the district court held that plaintiffs’ unjust enrichment claim against Phoenix is preempted, although it did not reach the question of whether this preemption created federal jurisdiction. A. Preemption Doctrine Preemption does not necessarily confer jurisdiction, since it is generally a defense to plaintiffs suit and, as such, it does not appear on the face of a well-pleaded complaint. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). It is only when based on the doctrine of “complete preemption,” that the preemptive force of federal law is so “extraordinary” that it converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule. Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Until the Supreme Court’s recent decision in Beneficial National Bank v. Anderson, 539 U.S. 1, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003), we would have hesitated to extend the complete preemption doctrine into the copyright field. The Supreme Court had never done so, and its previous applications of the doctrine appeared limited. See, e.g., Metro. Life, 481 U.S. at 65-67, 107 S.Ct. 1542. We had understood the doctrine to be restricted to “the very narrow range of cases where Congress has clearly manifested an intent to make specific action within a particular area removable.” Fax Telecommunicaciones Inc. v. AT & T, 138 F.3d 479, 486 (2d Cir.1998). Although the Fourth Circuit had extended the complete preemption doctrine to" }, { "docid": "18060797", "title": "", "text": "the defendants bear the burden of establishing jurisdiction by a preponderance of the evidence. Id. a. Complete Preemption A claim may be brought in federal court if the claim is one “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. When determining whether a claim arises under federal law, “we examine the ‘well pleaded’ allegations of the complaint and ignore potential defenses.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). “A suit arises under the Constitution and laws of the United States only when the plaintiffs statement of his own cause of action shows that it is based upon those laws or that Constitution.” Id. (quotation and alteration omitted). The plaintiffs’ complaint did not assert any cause of action premised upon a violation of a federal statute or the Constitution. Typically, then, we would not have jurisdiction under § 1331. But the doctrine of complete preemption provides an exception to the well-pleaded complaint rule. “When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.” Id. That said, “[c]omplete preemption is ... quite rare.” Johnson v. MFA Petroleum Co., 701 F.3d 243, 248 (8th Cir.2012). In our circuit, “a claim of complete preemption demands a two-part analysis: first, we ask whether the federal question at issue preempts the state law relied on by the plaintiff; and second, whether Congress intended to allow removal in such a case, as manifested by the provision of a federal cause of action----” Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1205 (10th Cir.2012) (quotations and alterations omitted). But we usually address the second prong of this analysis first. Id. at 1206. The existence of a potential federal cause of action is critical; complete preemption is not the same as preemption. See Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1158 (10th Cir.2004). That is, a state cause of action" }, { "docid": "3764671", "title": "", "text": "the hourly wage [sic].” Id. The specific provision of the CBA upon which Mr. Bush appears to be relying states that an employee who is discharged “shall be paid immediately.” See Wage Agreement, Art. XII. The CBA further states that an employee who does not “receive all monies due him within one half (1/2) hour of the designated time of discharge” shall be compensated for the time he has to wait “at the prescribed basis rate.” Id. Mr. Bush alleges that he is owed $5,000 in damages based on Clark’s failure to immediately pay all wages due at the time of his discharge. See Complaint. On October 31, 2002, defendants removed the case to this Court pursuant to 28 U.S.C. § 1441(b). II. DISCUSSION A. Removal A civil action filed in state court may be removed to federal court if the claim arises under federal law. See Beneficial National Bank v. Anderson, — U.S.-,-, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1 (2003) (citing 28 U.S.C. § 1441(b)). To determine whether a claim arises under federal law, the Court must “examine the ‘well pleaded’ allegations of the complaint and ignore potential defenses.” Id. (citing Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908)). Under the “well-pleaded complaint rule,” federal question jurisdiction “exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The plaintiff is master of the claim and may rely exclusively on state law to avoid federal question jurisdiction. See id. If the plaintiffs claim does not rest on a federal question, a defendant generally may not remove a case to federal court based on a federal defense, even if the defense is preemption. See Beneficial Nat’l Bank v. Anderson, — U.S. -, -, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1; Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). A corollary to the" }, { "docid": "8697070", "title": "", "text": "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. General Removal and Preemption Standards A defendant may remove any civil action filed in state court over which federal district courts have original jurisdiction. 28 U.S.C. § 1441; Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Federal district courts, in turn, have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Ordinarily, a court must determine the presence or absence of a federal question by examining only the plaintiffs well-pleaded complaint. Caterpillar Inc., 482 U.S. at 392, 107 S.Ct. 2425. This rule requires that a federal question appear on the face of the complaint. Bastien v. AT & T Wireless Servs., Ina, 205 F.3d 983, 986 (7th Cir.2000) (citing Franchise Tax Bd. of California v. Constr. Laborers Vacation Trust for S. California, 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). The plaintiff, as the master of his own complaint, may avoid federal jurisdiction by pleading only state-law claims. Id. Most often, a defendant raises federal preemption as a defense to a state-law action. Caterpillar Inc., 482 U.S. at 392, 107 S.Ct. 2425. A case may not be removed, however, based on a federal defense, “even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Id.; see Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). “On occasion, the Court has concluded that the preemptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” Caterpillar Inc.," }, { "docid": "15189103", "title": "", "text": "“arising under” federal law. 28 U.S.C. § 1441(b). The Court has original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Determining when a suit “arises under” a federal law is customarily determined by applying the well-pleaded complaint rule “which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Because the plaintiff is considered the master of his complaint, he may elect to avoid federal removal jurisdiction by relying solely on state law. Id. “Congress has long since decided that federal defenses do not provide a basis for removal.” Id. at 399, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318. “Thus, a case may not be removed to federal court on the basis of a defense, even if the defense is anticipated in the plaintiffs complaint, and even if both parties admit that the defense is the only question truly at issue in the case.” Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998)(internal quotations omitted). Limited exceptions to the well-pleaded complaint rule have been recognized. Recently, the Supreme Court characterized these exceptions as follows: “a state claim may be removed to federal court in only two circumstances — when Congress expressly so provides, such as in the Price-Anderson Act ..., or when a federal statute wholly displaces the state-law cause of action through complete preemption.” Beneficial Nat. Bank v. Anderson, — U.S.-,-, 123 S.Ct. 2058, 2063, 156 L.Ed.2d 1 (June 2, 2003)(“As a- general rule, absent diversity jurisdiction,- a case will not be removable if the complaint does not affirmatively allege a federal claim.”) Despite the omission of any federal claim in Plaintiffs Complaint, Defendant contends that federal question jurisdiction exists in this case for two independent reasons. First, Defendant contends that Plaintiffs state law claims are completely preempted by the Federal Communications Act. Second, Defendant contends based on the “substantial federal" } ]

[ { "docid": "22671351", "title": "", "text": "discretion to grant if the alien meets the INA’s definition of a “refúgee.” 8 U.S.C. § 1158(a)(1), (b)(1). A “refugee” is defined as: any person who is outside any country of such person’s nationality or, in the case of a person haying no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A) (emphasis added). The asylum applicant carries the burden of proving statutory “refugee” status and thereby establishing asylum eligibility. Al Najjar, 257 F.3d at 1284. To establish asylum eligibility based on political opinion or any other protected ground, the alien must, with credible evidence, establish (1) past perse cution on account of her political opinion or any other protected ground, or (2) a “well-founded fear” that her political opinion or any other protected ground will cause future persecution. 8 C.F.R. § 208.13(a), (b). If he or she meets that burden, the actual grant of asylum is a matter of discretion. Id. The Attorney General’s discretionary judgment whether to grant asylum “shall be conclusive unless manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). 1. Past persecution Although the INA does not expressly define “persecution” for purposes of qualifying as a “refugee,” see 8 U.S.C. § 1101(a)(42), we have discussed other circuits’ holdings that “persecution” is an “extreme concept,” requiring “more than a few isolated incidents of verbal harassment or intimidation,” and that “[m]ere harassment does not amount to persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir.2000) (quotation, marks and citations omitted). Sepulveda sets forth two grounds to. establish past persecution: (1) the restaurant bombing; and (2) threats to her, her brother, and other members of the university group. Her arguments are not sufficient to overturn the IJ’s decision. Although the evidence may permit a conclusion the" } ]

[ { "docid": "22786312", "title": "", "text": "Chinese government detained him; (2) he lost his job and was unable to find other employment in his home city; and (3) he was subjected to periodic searches by officials in the village where he came to reside. Zheng further asserts that because the Chinese government continues to persecute Falun Gong practitioners, his continued active participation in Falun Gong gives him a well-founded fear of future persecution should he be made to return to China. After review, we conclude that the evidence does not compel a conclusion that Zheng was entitled to asylum and withholding of removal. The Attorney General or the Secretary of Homeland Security has discretion to grant asylum if an alien meets the INA’s definition of a “refugee.” INA § 208(b)(1); 8 U.S.C. § 1158(b)(1)(A). A “refugee” is a person: who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion .... 8 U.S.C. § 1101(a)(42)(A). “The asylum applicant carries the burden of proving statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818. And the “denial of asylum may be reversed only if the evidence presented by the applicant is so powerful that a reasonable factfinder would have to conclude that the requisite fear of persecution exists.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323-24 (11th Cir.2001). To establish asylum eligibility, Zheng must, with specific and credible evidence, show (1) past persecution on account of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause future persecution. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir.2006) (citing 8 C.F.R. § 208.13(a), (b)). The INA does not expressly define “persecution” for purposes of qualifying as a “refugee.” But we have written that “[n]ot all exceptional treatment is persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir.2000). We have described persecution as" }, { "docid": "22794757", "title": "", "text": "herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Thus, an applicant can prove refugee status by presenting “specific and credible evidence” of either past persecution or fear of future persecution “on account of race, religion,. nationality, membership in a particular social group, or political opinion.” Scheerer, 445 F.3d at 1315. “To establish asylum based on past persecution, the applicant must prove (1) that she was persecuted, and (2) that the persecution was on account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.2006) (emphasis added). “To establish eligibility for asylum based on a well-founded fear of future persecution, the applicant must prove (1) a subjectively genuine and objectively reasonable fear of persecution that is (2) on account of a protected ground.” Id. (emphasis added, citations and quotation marks omitted). “The subjective component is generally satisfied by the applicant’s credible testimony that he or she genuinely fears persecution. In most cases, the objective prong can be fulfilled either by establishing past persecution or that he or she has a good reason to fear future persecution.” Al Najjar, 257 F.3d at 1289 (citation and quotation marks omitted). A showing of past persecution creates a rebuttable presumption of a well-founded fear of future persecution. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.2005) (per curiam). To overcome this presumption, the government bears the burden to show by a preponderance of the evidence either that conditions in the country have changed or that the applicant could avoid future persecution by relocating within the country if, “under all the circumstances, it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 208.13(b)(1)(i)(B); accord Arboleda v. U.S. Att’y Gen., 434 F.3d 1220, 1223 (11th Cir.2006) (per curiam). Although the INA does not define “persecution,” we have often repeated that “persecution is an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation, and that" }, { "docid": "22949612", "title": "", "text": "country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion .... INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving statutory “refugee” status. See Al Najjar, 257 F.3d at 1284. To establish asylum eligibility, the alien must, with specific and credible evidence, establish (1) past persecution on account of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor, in this case political opinion, will cause such future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. The INA does not expressly define “persecution” for purposes of qualifying as a “refugee.” See INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). It does, however, provide that: For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion. INA § 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B). It is “well-established” that the well-founded fear inquiry contains both an objective and subjective component, i.e., the petitioner must be genuinely afraid and that fear must be objectively reasonable. Al Najjar, 257 F.3d at 1289. As we have noted, “persecution” is an “extreme concept,” requiring more than “a few isolated incidents of verbal harassment or intimidation,” or “[m]ere harassment.” Sepulveda v. United States Attorney Gen., 401 F.3d 1226, 1231 (11th Cir.2005). Furthermore, it is the petitioner’s burden to present “specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution.” Al Najjar, 257 F.3d at 1287 (quotation and" }, { "docid": "22711764", "title": "", "text": "fact must determine credibility, and this court may not substitute its judgment for that of the [IJ] with respect to credibility findings.” Id. (citing Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir.1977)). III. DISCUSSION Because this case revolves around the IJ’s adverse credibility determination, we first discuss what an alien needs to establish in order to qualify for asylum. We then discuss what role an alien’s credibility plays in the asylum process. An alien who arrives in or is present in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1). To qualify for asylum, the alien must be a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is defined as any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion .... 8 U.S.C. § 1101(a)(42)(A); see D-Muhumed, 388 F.3d at 818; Al Najjar, 257 F.3d at 1284. “The asylum applicant carries the burden of proving statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818. “To establish asylum eligibility, the alien must establish a well-founded fear that his or her political opinion (or other statutorily listed factor) will cause harm or suffering that rises to the level of persecution.” Id. (internal quotation marks and citations omitted). In order to demonstrate a sufficient connection between future persecution and the protected activity, an alien is required “to present specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution on account” of such a protected activity. Id. (internal quotation marks and citations omitted). Establishing a history of past persecution creates a presumption that an alien has a well-founded fear of future persecution, although that presumption can be rebutted by the government. Id. The" }, { "docid": "21459125", "title": "", "text": "of an application for asylum or withholding of removal, an alien “must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Elias-Za-carias, 502 U.S. at 483-84, 112 S.Ct. 812. Finally, we review de novo any legal issues determined by the BIA. Blanco de Belbru-no v. Ashcroft, 362 F.3d 272, 278 (4th Cir .2004). III. In this proceeding, Ali seeks our review of the BIA Order to the extent that it affirmed the IJ Order’s denial of his requests for asylum and withholding of removal. Under the INA, the Secretary of the DHS and the Attorney General are both authorized to grant asylum to an alien who has satisfied the statutory definition of a refugee. 8 U.S.C. § 1158(b)(1). A “refugee” under the INA is a person who is “unable to or unwilling to return to ... [his home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). An applicant becomes eligible for asylum upon establishing that he has suffered from past persecution, or that he has a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b). Such an applicant may establish a well-founded fear of future persecution by demonstrating “(1) that a reasonable person in the circumstances would fear persecution; and (2) that the fear has some basis in the reality of the circumstances and is validated with specific, concrete facts.” Huaman-Cornelio v. BIA 979 F.2d 995, 999 (4th Cir.1992) (citations and internal quotation marks omitted). In other words, an asylum applicant must demonstrate a subjectively genuine and objectively reasonable fear of future persecution on account of a statutorily protected ground. Yong Hao Chen v. INS, 195 F.3d 198, 201-02 (4th Cir.1999); see also 8 C.F.R. § 208.13(b)(2)(B) (providing that applicant’s fear of persecution is well-founded if it is on account of protected ground and there is “reasonable probability of suffering such persecution”). Importantly, an applicant for asylum bears the burden of establishing his eligibility for such" }, { "docid": "23281268", "title": "", "text": "unwilling to return to, and is unable or unwilling, to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101 (a) (42)(A), 8 U.S.C. § 1101(a)(42)(A). To establish asylum eligibility, the alien must, with specific and credible evidence, establish (1) past persecution on account of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause such future persecution. Al Najjar, 257 F.3d at 1287; 8 C.F.R. § 208.13(a), (b). “A showing of past persecution creates a presumption of a ‘well-founded fear’ subject to rebuttal by the [Immigration and Naturalization Service (‘INS’)].” Sepulveda, 401 F.3d at 1231; 8 C.F.R. § 208.13(b)(1). “[T]he INS can overcome the presumption of future persecution by showing that [the applicant] could avoid future threats by relocating within the country, assuming that it is reasonable under all the circumstances to do so.” Antipova v. United States Att’y Gen., 392 F.3d 1259, 1265 (11th Cir.2004) (withholding of removal); 8 C.F.R. § 208.16(b)(1)(i)(B). The BIA has construed the INA and its regulations to require that an asylum applicant show that he faces a threat of future persecution country-wide. Matter of Acosta, 19 I. & N. Dec. 211, 235 (BIA 1985). We have upheld the imposition of a “country-wide” requirement, and have noted that “it is not unreasonable to require a refugee who has an internal resettlement alternative in his own country to ... establish that such an option is unavailable.” Mazariegos v. United States Attorney Gen., 241 F.3d 1320, 1327 (11th Cir.2001). Since 2001, the immigration regulations have codified the country-wide requirement, and have instructed the IJ to consider whether “under all the circumstances it would be reasonable to expect the applicant [to relocate].” 8 CFR § 1208.13(b)(2)(ii); see also 8 CFR § 1208.13(b)(1)(i)(B). The regulations identify several considerations relevant to the “reasonableness” determination, including whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country," }, { "docid": "22922220", "title": "", "text": "that he is unwilling or unable to return to his country of origin because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). An applicant can make this showing, and be eligible for asylum, in two ways. First, the applicant can show past persecution on account of a protected ground. 8 C.F.R. § 208.13(b)(1). Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the government to show, by a preponderance of the evidence, that “there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution,” or “[t]he applicant could avoid future persecution by relocating to another part of the applicant’s country.” 8 C.F.R. § 208.13(b)(l)(i) & (ii). An applicant may also qualify for asylum by actually, showing a well-founded fear of future persecution, again on account of a protected ground. 8 C.F.R. § 208.13(b)(2). In order to show past persecution, Deloso must demonstrate that an incident (1) rises to the level of persecution; (2) is on account of one of the five statutorily protected grounds; and (3) is committed by the government or forces the government is either unable or unwilling to control. Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir.2004). The IJ denied Deloso’s petition because he had not established that the persecution alleged was on account of one of the five statutorily protected grounds. Deloso claims that he was persecuted on account of his political opinion. Thus he must also establish that he held an actual or implied political opinion and his persecutors knew of his political opinion or imputed a political opinion to him. See Sangha v. INS, 103 F.3d 1482, 1487-89 (9th Cir.1997). We conclude that the IJ incorrectly determined that the harm Deloso suffered was not at least partly “on account of’ his political opinion — an error perhaps explained by the decision being made prior to Borja and Briones. First, Deloso dearly established that he had a political" }, { "docid": "23281267", "title": "", "text": "We review only the BIA’s decision in this case, as it did not expressly adopt the IJ’s findings below. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). We review the determination by the BIA that an alien is statutorily ineligible for asylum or withholding of removal under the “substantial evidence test.” Id. at 1283. We “must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Id. at 1283-84 (quoting Lorisme v. INS, 129 F.3d 1441, 1444-45 (11th Cir.1997)). We may not reweigh the evidence and may not reverse the BIA’s findings of fact unless the record compels a contrary conclusion. Farquharson v. United States Att’y Gen., 246 F.3d 1317, 1320 (11th Cir.2001). The Attorney General has discretion to grant asylum if the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is defined as: any person who is outside any country of such person’s nationality ..., and who is unable or unwilling to return to, and is unable or unwilling, to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101 (a) (42)(A), 8 U.S.C. § 1101(a)(42)(A). To establish asylum eligibility, the alien must, with specific and credible evidence, establish (1) past persecution on account of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause such future persecution. Al Najjar, 257 F.3d at 1287; 8 C.F.R. § 208.13(a), (b). “A showing of past persecution creates a presumption of a ‘well-founded fear’ subject to rebuttal by the [Immigration and Naturalization Service (‘INS’)].” Sepulveda, 401 F.3d at 1231; 8 C.F.R. § 208.13(b)(1). “[T]he INS can overcome the presumption of future persecution by showing that [the applicant] could avoid future threats by relocating within the country, assuming that it is reasonable under all the circumstances to do so.” Antipova v. United States Att’y Gen., 392" }, { "docid": "22090192", "title": "", "text": "Att’y Gen., 278 F.3d 1216, 1218 (11th Cir.2002)). IV. DISCUSSION A. Legal Standards To be eligible for asylum, an applicant must prove that she is a “refugee” within the meaning of the Immigration and Nationality Act (“INA”). 8 U.S.C. § 1158(b)(1)(A); see generally Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231-32 (11th Cir.2007). A “refugee” is defined, in relevant part, as: any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). An applicant can prove refugee status in one of two ways: by demonstrat ing past persecution or fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 C.F.R. § 208.13(b). The applicant must present “ ‘specific and credible evidence’ ” in support of her asylum application, Sanchez Jimenez, 492 F.3d at 1232 (quoting Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1315 (11th Cir.2006)), but “[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 208.13. 1. Past Persecution Asylum To establish asylum based on past persecution, the applicant must prove (1) that she was persecuted, and (2) that the persecution was on account of a protected ground. 8 C.F.R. § 208.13(b)(1); Sanchez Jimenez, 492 F.3d at 1232. “[I]t is by now well-established in our case law that an applicant can establish eligibility for asylum as long as he can show that the persecution is, ‘at least in part, motivated by a protected ground.’ ” Sanchez Jimenez, 492 F.3d at 1232 (quoting Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821 (11th Cir.2007)) (emphasis removed). In addition to providing an independent avenue for asylum eligibility, a showing of past persecution creates a rebuttable presumption of a well-founded fear of future persecution." }, { "docid": "22786313", "title": "", "text": "of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion .... 8 U.S.C. § 1101(a)(42)(A). “The asylum applicant carries the burden of proving statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818. And the “denial of asylum may be reversed only if the evidence presented by the applicant is so powerful that a reasonable factfinder would have to conclude that the requisite fear of persecution exists.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323-24 (11th Cir.2001). To establish asylum eligibility, Zheng must, with specific and credible evidence, show (1) past persecution on account of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause future persecution. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir.2006) (citing 8 C.F.R. § 208.13(a), (b)). The INA does not expressly define “persecution” for purposes of qualifying as a “refugee.” But we have written that “[n]ot all exceptional treatment is persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir.2000). We have described persecution as an “extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation, and that mere harassment does not amount to persecution.” Sepulveda, 401 F.3d at 1231 (quotations and internal marks omitted). Although under certain circumstances detention may rise to the level of persecution, Zheng’s five-day detention during which he was not harmed does not compel the conclusion that he experienced past persecution. See Sepulveda, 401 F.3d at 1231 (concluding that menacing phone calls and threats to family members and other members of group did not rise to level of past persecution); Gebremariam v. U.S. Att’y Gen., 126 Fed.Appx. 934, 937 (11th Cir.2005) (unpublished) (concluding that 14-day detention did not rise to level of past persecution); see also Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir.2003) (finding no persecution when petitioner was detained for three days without food during which time he was beaten, resulting in swollen face); Fesseha v. Ashcroft, 333 F.3d 13, 19 (1st Cir.2003) (finding no persecution when petitioner was subjected to occasional 24-hour detentions); Prasad v. INS, 47" }, { "docid": "22944871", "title": "", "text": "is not enough to justify a reversal of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.2004) (en banc). We review the BIA’s legal determinations de novo. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007). I. Denial of Asylum and Withholding of Removal An alien who arrives in or is present in the United States may apply for asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or Secretary of the Department of Homeland Security has discretion to grant asylum if the requirements and procedures established in application are met, and the alien meets the INA’s definition of a refugee. INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The definition of “refugee” includes: any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the burden of proving that he qualifies as a refugee. 8 C.F.R. § 208.13(a). In order to meet this burden, “the applicant must, with specific and credible evidence, establish (1) past persecution on account of a statutorily protected ground or (2) a well-founded fear of future persecution on account of a protected ground.” Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir.2007). Persecution is not defined in the INA, but we have discussed other circuit’s holdings that it is “an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.2005) (internal quotations marks omitted). In determining whether an alien has suffered past persecution, the BIA considers the cumulative impact of the alleged incidents of persecution. Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861-62 (11th Cir.2007). “An applicant who has demonstrated past persecution is presumed to have a well-founded fear" }, { "docid": "22693465", "title": "", "text": "light of Ruiz’s past opposition to the FARC, statements in the 2002 Country Report reflecting FARC’s country-wide capacity to harm, and a report by the INS’s Resource Information Center (“RIC”), it is more likely than not that the petitioners will be persecuted on account of Ruiz’s political opinion if they return to Colombia. As discussed above, an IJ’s factual determinations are reviewed under the substantial evidence test, and we “must affirm the [IJ’s] decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” See Al Najjar, 257 F.3d at 1283-84. An alien who arrives in, or is present in, the United States may apply for asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland Security or the Attorney General has discretion to grant asylum if the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is defined as any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion .... INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). “The asylum applicant cames the burden of proving statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818. To establish asylum eligibility, the petitioner must, with specific and credible evidence, demonstrate (1) past persecution on account of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. If the petitioner demonstrates past persecution, there is a rebuttable presumption that he has a well-founded fear of future persecution. 8 C.F.R § 208.13(b)(1). If he cannot show past persecution, then the petitioner must demonstrate a well-founded fear of future" }, { "docid": "22794756", "title": "", "text": "undermine the conclusion that federal appeals courts lack jurisdiction to review application timeliness determinations under section 1158(a)(2)). Here, the IJ determined that Ghisela was not eligible for asylum because she did not file her application within one year of her arrival in the United States and, the IJ found, there was “no evidence or indication in the record” explaining her delay. (Admin.Rec.48.) Accordingly, under section 1158(a)(3), this Court lacks jurisdiction over Ghisela’s petition for review of the denial of her asylum application, and we dismiss that part of her petition for review. C. Montoya’s Asylum Application To be eligible for asylum, an applicant bears the burden of proving that he is a “refugee” within the meaning of the INA. 8 U.S.C. § 1158(b)(1)(A); Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir.2006) (per curiam). In relevant part, the INA defines a “refugee” as any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Thus, an applicant can prove refugee status by presenting “specific and credible evidence” of either past persecution or fear of future persecution “on account of race, religion,. nationality, membership in a particular social group, or political opinion.” Scheerer, 445 F.3d at 1315. “To establish asylum based on past persecution, the applicant must prove (1) that she was persecuted, and (2) that the persecution was on account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.2006) (emphasis added). “To establish eligibility for asylum based on a well-founded fear of future persecution, the applicant must prove (1) a subjectively genuine and objectively reasonable fear of persecution that is (2) on account of a protected ground.” Id. (emphasis added, citations and quotation marks omitted). “The subjective component is generally satisfied by the applicant’s credible testimony that he" }, { "docid": "22408709", "title": "", "text": "Id. We review the IJ and BIA’s factual determinations under the substantial evidence test, and we will “affirm the [IJ’s] decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.2005) (alteration in original) (internal quotations and citations omitted). DISCUSSION An alien who arrives in, or is present in, the United States may apply for asylum. INA § 209(a)(1), 8 U.S.C. § 1158(a)(1). • Under the INA, the Attorney General or Secretary of Homeland Security may grant asylum if the alien meets the statutory definition of “refugee.” See 8 U.S.C. § 1158(b)(1)(A). The definition of refugee includes: any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Id. § 1101(a)(42)(A). The asylum applicant has the burden of proving the “refugee” status that entitles him or her to be considered for asylum. Al Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). In order to carry this burden, the applicant must, with specific and credible evidence, establish (1) past persecution on account of a statutorily protected ground or (2) a well-founded fear of future persecution on account of a protected ground. 8 C.F.R. § 208.13(b); Al Najjar, 257 F.3d at 1287. To establish a well-founded fear of persecution, the applicant need only show that “[t]here is a reasonable possibility of suffering such persecution if he or she were to return to that country.” 8 C.F.R. § 208.13(b)(2)(i)(B) (emphasis added); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 450, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“Congress did not intend to restrict eligibility for [asylum] to those who could prove that it is more likely than not that they will be persecuted if deported.”). An applicant who has demonstrated past persecution is presumed" }, { "docid": "22693466", "title": "", "text": "having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion .... INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). “The asylum applicant cames the burden of proving statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818. To establish asylum eligibility, the petitioner must, with specific and credible evidence, demonstrate (1) past persecution on account of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. If the petitioner demonstrates past persecution, there is a rebuttable presumption that he has a well-founded fear of future persecution. 8 C.F.R § 208.13(b)(1). If he cannot show past persecution, then the petitioner must demonstrate a well-founded fear of future persecution that is both subjectively genuine and objectively reasonable. Al Najjar, 257 F.3d at 1289. The subjective component can be proved “by the applicant’s credible testimony that he or she genuinely fears persecution,” while the objective component “can be fulfilled either by establishing past persecution or that he or she has a good reason to fear future persecution.” Id. (quotation omitted). An alien seeking withholding of removal under the INA similarly must show that his “life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The burden of proof for withholding of removal, however, is “more likely than not,” and, thus, is “more stringent” than the standard for asylum relief. Sepulveda, 401 F.3d at 1232. The statutes governing asylum and withholding of removal protect not only against persecution by government forces, but also against persecution by non-governmental groups that the government cannot control, such as the FARC. See Sanchez v. U.S. Att’y" }, { "docid": "23184776", "title": "", "text": "a “substantial evidence” standard. “The [IJ’s] factual determination that [an alien] is removable and not entitled to asylum must be upheld if it is supported by substantial evidence.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir.2001). “[A] denial of asylum may be reversed only if the evidence presented by the applicant is so powerful that a reasonable factfinder would have to conclude the requisite fear of persecution exists.” Id. To be eligible for asylum, the applicant bears the burden of proving statutory “refugee” status. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a). That is, the alien must, with specific and credible evidence, establish (1) past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion; or (2) a well-founded fear of future persecution on account of a statutorily-protected ground. See 8 C.F.R. § 208.13(b). An alien may establish past persecution or a well-founded fear of future persecution under a theory of imputed political opinion where he shows a political opinion was correctly or incorrectly attributed to him and he was persecuted because of that opinion. See Al Najjar, 257 F.3d at 1289. Fear of prosecution under fairly administered laws, on the other hand, does not ordinarily entitle an alien to asylum or withholding of removal. See, e.g., Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th Cir.2001) (citing Janusiak v. INS, 947 F.2d 46 (3d Cir.1991)). If, however, the alien shows the prosecution is based on a statutorily-protected ground, and if the punishment under that law is sufficiently extreme to constitute persecution, the law may provide the basis for asylum or withholding of removal even if the law is generally applicable. See Chang v. INS, 119 F.3d 1055, 1060-61 (3d Cir.1997); Abedini v. INS, 971 F.2d 188, 191-92 (9th Cir.1992); Behzadpour v. United States, 946 F.2d 1351, 1353 (8th Cir.1991). Scheerer relies on two theories to argue the IJ erred in holding he failed to establish statutory “refugee” status. First, characterizing his report as purely scientific, historical, and factual, Scheerer contends the German government ascribed an anti-Semitic ideology to" }, { "docid": "22298451", "title": "", "text": "of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.2004). We may reverse a finding of fact “only when the record compels a reversal; the mere fact that the record may support a contrary conclusion is not enough to justify a reversal of the administrative findings.” Id.; see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary!.]”). We “may not substitute [our] judgment for that of the [Board] with respect to credibility findings.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir.2004). III. DISCUSSION To establish asylum eligibility, an applicant must prove that he is a “refugee” under the Immigration and Nationality Act. See 8 U.S.C. § 1158(b)(1); see also Al Najjar, 257 F.3d at 1284. A “refugee” must either have suffered persecution or have a well-founded fear of future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To establish that he has suffered past persecution, an applicant must “prove (1) that [ ]he was persecuted, and (2) that the persecution was on account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.2006). To establish a well-founded fear of future persecution, an applicant must “present detailed, specific facts showing a good reason to fear that he ... will be singled out for persecution on account of such opinion.” Al Najjar, 257 F.3d at 1287 (quoting Faddoul v. INS, 37 F.3d 185, 188 (5th Cir.1994)) (internal quotation marks omitted). An applicant may be able to meet his statutory burden by providing uncorroborated but credible testimony, and in the absence of corroborating evidence, an adverse credibility determination may be sufficient to support the denial of an application. See 8 C.F.R. § 208.13; see also Forgue, 401 F.3d at 1287; D-Muhumed, 388 F.3d at 819. An applicant who cannot meet the standard for asylum cannot meet the standard for withholding of removal. D-Muhumed, 388 F.3d at 819; see also Al Najjar, 257 F.3d at 1292-93. We" }, { "docid": "23184775", "title": "", "text": "finding Scheerer, an arriving alien in removal proceedings, was subject to a regulatory bar, 8 C.F.R. § 1245.1(c)(8), which rendered him ineligible to apply for adjustment of status. Scheerer then filed two timely petitions for review of both BIA decisions with this Court, which we consolidated and docketed for oral argument. In November 2005, Scheerer was removed to Germany after this Court denied his emergency motion to stay removal pending this appeal. Despite his removal, Scheerer’s appeal continues unabated and raises three issues: (1) whether the BIA erred in denying his petition for asylum and withholding of removal; (2) whether the BIA erred in finding his asylum application was frivolous; and (3) whether the Attorney General exceeded his authority in promulgating 8 C.F.R. § 1245.1(c)(8). II. DISCUSSION A. Claim for Asylum and Withholding of Removal Where the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as if it were the BIA’s. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review the IJ’s denial of an asylum application under a “substantial evidence” standard. “The [IJ’s] factual determination that [an alien] is removable and not entitled to asylum must be upheld if it is supported by substantial evidence.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir.2001). “[A] denial of asylum may be reversed only if the evidence presented by the applicant is so powerful that a reasonable factfinder would have to conclude the requisite fear of persecution exists.” Id. To be eligible for asylum, the applicant bears the burden of proving statutory “refugee” status. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a). That is, the alien must, with specific and credible evidence, establish (1) past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion; or (2) a well-founded fear of future persecution on account of a statutorily-protected ground. See 8 C.F.R. § 208.13(b). An alien may establish past persecution or a well-founded fear of future persecution under a theory of imputed political opinion where he shows a political opinion was correctly or incorrectly attributed" }, { "docid": "22735404", "title": "", "text": "Immigration Judge must consider the issues raised and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Id. (internal quotation marks omitted). III. DISCUSSION The Immigration and Nationality Act gives the Attorney General discretion to grant asylum to any alien determined to be a “refugee” within the meaning of the Act. 8 U.S.C. § 1158(b)(1)(A). “A refugee is defined as one who is unable or unwilling to return to his or her home country ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1202 (11th Cir.2005) (quoting 8 U.S.C. § 1101(a)(42)(A)). “The burden of proof is on the applicant to establish that the applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(i). “To establish asylum based on past persecution, the applicant must prove (1) that [ ]he was persecuted, and (2) that the persecution was on account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.2006); see also 8 C.F.R. § 208.13(b). “An applicant who has been found to have established such past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim.” 8 C.F.R. § 208.13(b)(1). That presumption may be rebutted if an asylum officer or immigration judge makes either of two findings: (1) that “[t]here has been a fundamental change in circumstances such that the applicant no longer has a well- founded fear of persecution”; or (2) “[t]he applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality ... and under all the circumstances, it would be reasonable to expect the applicant to do so.” Id. § 208.13(b)(1)(i)(A) & (B). The government bears the burden of establishing by a preponderance of the evidence either changed circumstances or the ability to avoid persecution by relocating. Id. § 208.13(b)(1)(ii). An applicant may also establish a well-founded fear of persecution without proving past" }, { "docid": "22944872", "title": "", "text": "a particular social group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the burden of proving that he qualifies as a refugee. 8 C.F.R. § 208.13(a). In order to meet this burden, “the applicant must, with specific and credible evidence, establish (1) past persecution on account of a statutorily protected ground or (2) a well-founded fear of future persecution on account of a protected ground.” Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir.2007). Persecution is not defined in the INA, but we have discussed other circuit’s holdings that it is “an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.2005) (internal quotations marks omitted). In determining whether an alien has suffered past persecution, the BIA considers the cumulative impact of the alleged incidents of persecution. Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861-62 (11th Cir.2007). “An applicant who has demonstrated past persecution is presumed to have a well-founded fear of future persecution.” Mejia, 498 F.3d at 1257; 8 C.F.R. § 208.13(b)(1). The presumption can be rebutted by a showing that “[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution” or the “applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality.” 8 C.F.R. § 208.13(b)(l)(i)(A) & (B). To establish a well-founded fear of future persecution, an alien “need only show that there is a reasonable possibility of suffering such persecution if he or she were to return to that country.” Mejia, 498 F.3d at 1256 (internal quotation marks and alteration omitted). The alien must establish a fear that is both “subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289. “The subjective component is generally satisfied by the applicant’s credible testimony that he or she genuinely fears persecution.” Id. “[T]he objective prong can be fulfilled either by establishing past persecution or that he or she has a good reason to fear future persecution.” Id. (internal quotation" } ]

[ { "docid": "16162615", "title": "", "text": "continued in control. See also Frank J. Lorenz, 3 T. C. 746; affd., 148 Fed. (2d) 527 (also citing the Tower case), wherein a business formerly the sole proprietorship of a husband was converted, it was contended, into a partnership to which the wife contributed no services, knew nothing about the business, and in effect contributed only the gift from her husband of an interest. It was held that the husband was taxable upon the entire “partnership” income; Doll v. Commissioner, 149 Fed. (2d) 239; certiorari denied, 326 U. S. 725; A. R. Losh, 1 T. C. 1019; Jacob DeKorse, 5 T. C. 94. We think it would serve no useful purpose to discuss the cases cited by both parties or the details of facts as disclosed by the record. Suffice it to say that in our opinion the evidence shows that petitioner and his son, wife, and daughter did not intend to carry on business as a partnership. The giving of the leases and subleases by petitioner to the members of his family and the execution of the operating agreements made no material changes in the operation of the business. The control of petitioner over the business and property was as complete after the execution of the agreements as it had been before. The wife invested no capital originating with her nor did she contribute substantially to the control and management of the business or otherwise perform vital additional services after the execution of the operating agreement. The same applies to the son and daughter. The petitioner, despite the claimed partnership, actually created the right to receive and enjoy the benefit of the income so as to make it taxable to him. The action of the respondent in including in petitioner’s taxable income the amounts credited to the wife, son, and daughter for the taxable years is approved. The next question to be considered is whether the assessment and collection of the deficiencies for 1938 and 1939 are barred. The respondent alleged in his answer and the petitioner admitted in his reply that petitioner and his wife duly executed" } ]

[ { "docid": "16166177", "title": "", "text": "no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U. S. C. S§ 181, 182. The Tax Court has recognized that under such circumstances the income belongs to the wife. A wife may become a general or a limited partner with her husband. But when she does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning of the federal revenue laws. Neither the wife nor the daughters here invested any capital “originating” with them; the capital all originated with the petitioner. Neither did the wife nor the daughters contribute any services to the business which produced the income. It was at all times under the exclusive management and control of the petitioner. The conclusion here is inescapable that the trust conveyances and the partnership agreement were all related steps in a plan of the petitioner to divide his income among the members of his immediate family for the purpose of reducing his taxes. The circumstances of the creation of the trusts with the wife acting as trustee for the daughters does not affect the question of whether there was a partnership which should be recognized for tax purposes. A trustee’s participation in a business partnership stands on the same considerations as an individual’s. We think that the respondent correctly determined that all of the warehouse profits are taxable to the petitioner as his individual income. Decision will be entered for the respondent." }, { "docid": "16295883", "title": "", "text": "on business as a partnership.” — going on to state that the issue must be decided by considering all steps in the transaction. Validity of partnership under state law was held not controlling, proof of motive to reduce taxes was considered as relevant to the inquiry into reality of partnership, and a question as to whether a gift was incomplete as conditional was considered unnecessary of decision, in the light of the conclusion of this Court, the question of ownership of the property conveyed being regarded as only evidential on the “broader question of whether an alleged partnership is real or pretended.” It was stated that there may be partnership between husband and wife, under some circumstances and, “If she invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things, she may be a partner * * *. But when she does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take those circumstances into consideration in determining whether the partnership is real.” Emphasis was placed on the command of the taxpayer over the income. A number of cases have considered facts in issues similar to, though of course not identical with, those here involved, e. g., Mead v. Commissioner, 131 Fed. (2d) 323; Frank J. Lorenz, 3 T. C. 746; affd., 148 Fed. (2d) 627; Carl P. Munter, 5 T. C. 39, and have found that alleged partnership was not real, or a basis for division of income in a family. We can not consider it requisite to examine the details in the varied situations involved. Here, much as we found in the Tower case, a husband made his wife a gift of distributed corporate assets conditioned upon formation of partnership and continued as before to manage the business. She had no official connection or duties with the corporation, though she took an interest and" }, { "docid": "11986840", "title": "", "text": "by petitioner and his wife for their minor children were not partnership interests; and' that petitioner did not establish a loss on his claim for a deduction. The Tax Court further found that the trusts established by petitioner’s father for the children resulted in valid partnership interests. From the decision of the Tax Court, petitioner appealed. . We come, then, to the principal issue: whether, for income tax purposes, all of the income o'f Miller’s Gut Rate Drugs was, under the circumstances disclosed, properly taxable to the husband alone, or whether it was to be divided between the husband and his wife. Petitioner contends that his wife, Florence R. Miller, invested her independent capital in the business; that she contributed substantially to the management and control of the business; that she performed other vital services; and that the arrangement met the requirements of a valid family partnership. At the outset of its opinion, the Tax Court quoted from the opinion of the Supreme Court in Commissioner v. Tower, 327 U.S. 280, 66 S.Ct. 532, 537, 90 L.Ed. 670, 164 A.L.R. 1135, as follows; “There can be no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U.S.C. §§ 181, 182, 26 U.S.C.A. Int.Rev.Code §§ 181, 182. * * * But when she does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning O'f the federal revenue laws.” The latest pronouncement of the Supreme Court on the subject of partnerships under the income tax law is found in Commissioner v. Culbertson, 337 U.S. 733, 69 S.Ct, 1210, 1212, 93 L.Ed." }, { "docid": "22728502", "title": "", "text": "resulted in part from petitioner’s managerial ability, it also recognized that the capital contributed to the earnings. 3 T. C. at 543. The Tax Court thought that the wife acquired “no separate interest of her own by turning back to petitioner the $50,000” which had been given her conditionally and for that specific purpose. Why it thought the wife did not become an owner in the partnership business, the Tax Court does not explain. The Court’s opinion does not turn upon any issue which is connected with the value of Mr. Lusthaus’ services and we mention it only for the purpose of focusing attention upon what seems to us the Court’s error. If the case was in the posture of a tax claim against Mr. Lusthaus based upon his failure to account for income actually earned by him but paid to his wife, an entirely different issue would be presented. Since the questions of taxability in this case turn on the wife’s bona fide ownership of a share in the partnership, we cannot say that federal law is controlling. Even if it were, we are pointed to no federal law of partnership which precludes the wife’s becoming a partner with her husband and making her contribution to capital from money or property given to her by her husband, as well as from any other source The Court’s opinion does not hold that income of husband and wife must be taxed as one. Congress has refused to do this although urged to do so.* It does not hold that a wife may not be a partner of her husband under some circumstances. It is said she may be “If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things . . . 26 U. S. C. §§ 181, 182.” Commissioner v. Tower, ante, p. 290. But as we read the Court’s opinion, it decides that a wife may not become a partner of her husband for federal income tax purposes, if" }, { "docid": "13640214", "title": "", "text": "* * The gist of the respondent’s argument is that the alleged partnership was invalid because the new partners performed no important and necessary services, and skill, know-how, and contacts were important to the partnership’s success. However, capital was a material, important, and necessary element for success in the Forcum-James contracting business. Without adequate capital there could have been no profits. The testimony shows that this was a hazardous business involving large risks and considerable amounts of money. The fact that capital contributions were gifts is not controlling, if the gifts were absolute and unconditional as they were here. Commissioner v. Culbertson, supra. The new partners risked their capital gifts and their entire separate estates by becoming partners. Moreover, the petitioners did not benefit from nor retain dominion or control of the new partners’ investments or income in the partnership. The original partners and the new partners entered into the partnership agreement with bona fide intent and a business purpose of risking their capital in this partnership. We hold that the partner ship in question was bona fide, valid, and legal. We think that our holding that the partnership here in question was a valid and legal partnership as contended by petitioners under the doctrine laid down by the Supreme Court in the Culbertson case, supra, is in harmony with our decisions in Theodore D. Stern, 15 T. C. 521; Louis R. Eisenmann, 17 T. C. 1426; Edward D. Sultan, 18 T. C. 715, and Thomas E. Brodhead, 18 T. C. 726. In an earlier decision this Court held that this particular partnership involving the same petitioners was invalid for tax purposes for the year 1941. Wade E. Moore, 7 T. C. 1250, 1261-1269, appeal dismissed because of compromise and settlement (August 15, 1949), 176 F. 2d 311. Respondent does not contend that this earlier decision is res judicata for the instant case. Our earlier decision was promulgated on November 29, 1946, relying on Commissioner v. Tower, 327 U. S. 280. Subsequently, on June 27, 1949, the Supreme Court discussed the meaning of the Tower case in Commissioner v. Culbertson," }, { "docid": "16162658", "title": "", "text": "owned solely by the petitioner dui ing the taxable years; and that the income therefrom is taxable to him in its entirety. With respect to the interests in the partnership purportedly owned by Lucy M. Lawton, Dorothy K. Whiton, and Vivian Stanley, we think the case clearly comes within the rationale of Commissioner v. Tower, 327 U. S. 280, and Lusthaus v. Commissioner, 327 U. S. 293. In the Tower case, the Court said: There can be no question that a wife and husband may, under certain circumstances, become partners for tax, as. for other purposes. If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, .or does all of these things she may be a partner as contemplated by 26 U. S. C. §§ 181, 182. * * * But when she does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given her a partnership interest, The Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning of the federal revenue laws. Here the individuals named contributed nothing to the capital of the business. Their supposed contributions consisted solely of their respective shares in the corporate assets as represented by the stock purportedly given to them. As we have held above, however, no completed gifts of stock were ever made by the petitioner, who continued to own and control the corporation to the time of its dissolution. There is no evidence that the petitioner’s wife or daughters in any way participated in the management or control of the business. No more is there evidence of those “vital additional services” characterized as essential by the Supreme Court. Lucy M. Lawton rendered greater services to the corporation than to the partnership. During the taxable years she worked only three days a week, helping to make up the pay roll. Vivian Stanley worked for the corporation from 1931 to 1937. She" }, { "docid": "9670870", "title": "", "text": "OPINION. Tyson, Judge: The sole issue presented is whether all of the 1940 net income of the S & B Manufacturing Co. is taxable to petitioners John G. Scherf and George H. Barnes, as partners each having a one-half interest in the business, or whether the partnership formed by them and Paul W.. Scherf, John G. Scherf, Jr., Mildred E. Barnes, and Ruth E. Barnes on May 16, 1940, should be recognized so that, with respect to so much of the 1940 net income as is allocable to the period May 16 to December 31, 1940, the petitioners are each taxable only on one-sixth thereof. In cases like the present one we are not concerned with whether the Scherf and Barnes children were the legal owners under the laws of Alabama of a one-sixth interest each in the capital of the business, for the issue for Federal income tax purposes is, Who earned the income? The answer to that question depends upon whether the petitioners and their children really intended to carry on business as a partnership. Commissioner v. Tower, 327 U. S. 280. Where a husband and his wife, or a husband and his wife and children, have entered into a partnership arrangement and it appears from the facts that the wife and children made no investment of capital originating with them, that they have no voice in the management or control of the business, and that they contribute no vital services, those circumstances will justify this Court in concluding that a real partnership between them and the husband and father does not exist in so far as the Federal income tax law is concerned. Commissioner v. Tower, supra; Lusthaus v. Commissioner, 327 U. S. 293; Ed. Dubinsky Durwood, 6 T. C. 682; Floyd D. Akers, 6 T. C. 693; Abe Schreiber, 6 T. C. 707; Lewis Coleman Benson, 6 T. C. 748; John Lang, 7 T. C. 6; and W. A. Belcher, 7 T. C. 182. The evidence shows quite plainly that the children contributed no capital originating with them and contributed nothing to the management or control" }, { "docid": "22723235", "title": "", "text": "either vital services or capital originating with him. Its decision was based upon a finding that none of respondent’s sons had satisfied those requirements during the tax years in question. Sanction for the use of these “tests” of partnership is sought in this paragraph from our opinion in the Tower case: “There can be no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with hér or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U. S. C. §§ 181, 182. The Tax Court has recognized that under such circumstances the income belongs to the wife. A wife may become a general or a limited partner with her husband. But when she does not share in the management and control of the business, contributes no vital additional service,, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning of the federal revenue laws.” 327 U. S. at 290. It is the Commissioner’s contention that the Tax Court’s decision can and should be reinstated upon the mere reaffirmation of the quoted paragraph. The Court of Appeals; on the other hand, was of the opinion that a family partnership entered into without thought of tax avoidance should be given recognition tax-wise whether or not it ¿was intended that some of the partners contribute either capital or services during the tax year and whether or not they actually made such-contributions, since, it was formed “with the full expectation and purpose that the boys would, in the future, contribute their , time and services to the partnership.” We must consider, therefore, whether an intention to contribute capital or services sometime in the future is sufficient to satisfy ordinary concepts of partnership, as required by the Tower case. The sections of" }, { "docid": "22723234", "title": "", "text": "$100 a month plus board and lodging for himself and his wife both before and after formation-of Culbertson & Sons and until entering the Army. The second son was 22 years old, was married and finished college in 1940, the first year'during which the new part-, nership operated. He went directly into the Army following graduation and rendered no services to the partnership. The two younger sons, who were 18 and Í6 years old respectively in 1940, went to school during the winter and worked on the ranch during the summer. The tax years here involved are 1940 and 1941. A partnership return was filed for both years indicating a division of income approximating the capital attributed to each partner. It is the disallowance of this division of the income from the ranch that brings this case into the courts. First. The Tax Court read our decisions in Commissioner v. Tower, supra, and Lusthaus v. Commissioner, supra, as setting out two essential tests of partnership for income-tax purposes: that each partner contribute to the partnership either vital services or capital originating with him. Its decision was based upon a finding that none of respondent’s sons had satisfied those requirements during the tax years in question. Sanction for the use of these “tests” of partnership is sought in this paragraph from our opinion in the Tower case: “There can be no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with hér or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U. S. C. §§ 181, 182. The Tax Court has recognized that under such circumstances the income belongs to the wife. A wife may become a general or a limited partner with her husband. But when she does not share in the management and control of the business, contributes no vital additional service,, and where the husband purports in some way" }, { "docid": "16162657", "title": "", "text": "gift the donor must do everything reasonably permitted by the nature of the property and the circumstances of the transaction in parting with all the incidences of owner ship. Continued possession, dominion and control over the subject matter of the gift and the fruits thereof afford ample basis for the taxation of the income to the donor. * * * Here the evidence fails to show that the petitioner parted with the complete dominion and control of the subject matter of the gifts. Lacking such evidence, we must sustain the respondent. The last issue is whether or not a valid partnership existed after September 1, 1940, with respect to the ownership and operation of the Star Cutter Co. The petitioner contends that a valid partnership was in existence, composed of the petitioner, Lucy M. Lawton, Norman B. Lawton, Leonard B. Lawton, Dorothy K. Whiton, and Vivian Stanley, each having a 15 percent interest therein, and William Blakley, having a 10 percent interest therein. The respondent contends that there was no partnership; that the business was owned solely by the petitioner dui ing the taxable years; and that the income therefrom is taxable to him in its entirety. With respect to the interests in the partnership purportedly owned by Lucy M. Lawton, Dorothy K. Whiton, and Vivian Stanley, we think the case clearly comes within the rationale of Commissioner v. Tower, 327 U. S. 280, and Lusthaus v. Commissioner, 327 U. S. 293. In the Tower case, the Court said: There can be no question that a wife and husband may, under certain circumstances, become partners for tax, as. for other purposes. If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, .or does all of these things she may be a partner as contemplated by 26 U. S. C. §§ 181, 182. * * * But when she does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given" }, { "docid": "16166176", "title": "", "text": "nor controls it. Lucas v. Earl, supra. The issue is who earned the income and that issue depends on whether this husband and wife really intended to carry on business as a partnership. Those issues cannot be decided simply by looking at a single step in a complicated transaction. To decide who worked for, otherwise created or controlled the income, all steps in the process of earning the profits must be taken into consideration. See Commissioner v. Court Holding Co., 324 U. S. 331, 334. Of course, the question of legal ownership of the capital purportedly contributed by a wife will frequently throw light on the broader question of whether an alleged partnership is real or pretended. But here the Tax Court’s findings were supported by a sufficient number of other factors in the transaction, go that we need not decide whether its holding as to the completeness of the gift was correct. Cf. Helvering v. Hallock, 309 U. S. 106, 117, 118; Burnet v. Wells, 289 U. S. 670, 677. II. There can be no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U. S. C. S§ 181, 182. The Tax Court has recognized that under such circumstances the income belongs to the wife. A wife may become a general or a limited partner with her husband. But when she does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning of the federal revenue laws. Neither the wife nor the daughters here invested any capital “originating” with them; the capital all originated with the petitioner. Neither did" }, { "docid": "11986856", "title": "", "text": "the effect that there was no reason why the general concept of a partnership that rules in ordinary commercial-law cases “should not apply in tax cases where the government challenges the existence of a partnership for tax purposes.” Commissioner v. Tower, 327 U.S. 280, 287, 66 S.Ct. 532, 536, 90 L.Ed. 670, 164 A.L.R. 1135. The same view was also emphasized by Mr. Justice Frankfurter, in his concurring opinion in the Culbertson case, where he observed that the test of a valid family partnership for tax ■purposes should be the same as the test for any partnership regardless of the involvement of income tax, namely, that the controlling consideration is whether the parties intend to join in a business venture. Accordingly, there seems to be no reason why a husband’s irrevocable gift to his wife of a partnership interests should not make her a partner even though she contributes no services. The determining question is whether the husband and wife really intend to carry on the business as copartners, Wenig v. Commissioner, D. C. Cir., 177 F.2d 62; Greenberger v. Commissioner, 7 Cir., 177 F.2d 990; Ginsburg v. Arnold, 5 Cir., 176 F.2d 879. See also the recent decisions of the Tax Court since the decision in the Culbertson case. O. H. Delchamps, 13 T. C. 281; Edward A. Theurkauf, 13 T. C. 529. We find the evidence to be clear and convincing that the Millers, even before their marriage, were working together in the drug business; that Mrs. Miller at all times contributed substantial, valuable, and vital services; that her husband gave •her a half interest in the business because of her services and because he felt that she was entitled to it; and that this half interest constituted her share of the business, which the parties intended, in good faith, to carry on, as partners, and did carry on as a valid partnership. Lawton et al. v. Commissioner, supra; Weizer v. Commissioner, 6 Cir., 165 F.2d 772; Kent v. Commissioner, supra; Henson v. Commissioner, 5 Cir., 174 F. 2d 846. There is no substantial evidence to support a" }, { "docid": "22723176", "title": "", "text": "ownership of the capital purportedly contributed by a wife will frequently throw light on the broader question of whether an alleged partnership is real or pretended. But here the Tax Court’s findings were supported by a sufficient number of other factors in the transaction, so that we need not decide whether its holding as to the completeness of the gift was correct. Cf. Helvering v. Hallock, 309 U. S. 106, 117, 118; Burnet v. Wells, 289 U. S. 670, 677. There can be no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U. S. C. §§ 181,182. The Tax Court has recognized that under such circumstances the income belongs to the wife. A wife may become a general or a limited partner with her husband. But when she does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning of the federal revenue laws. It is the command of the taxpayer over the income which is the concern of the tax laws. Harrison v. Schaffner, 312 U. S. 579, 581, 582. And income earned by one person is taxable as his, if given to another for the donor’s satisfaction. Helvering v. Horst, 311 U. S. 112, 119. It is for this reason, among others, that we said in Helvering v. Clifford, supra,, 335, that transactions between husband and wife calculated to reduce family taxes should always be subjected to special scrutiny. For if under circumstances such as those now before us, the end result of the creation of a husband-wife partnership, though valid under state laws, is that income" }, { "docid": "9671065", "title": "", "text": "OPINION. Tyson, Judge: The respondent determined the petitioner to be taxable on the entire net income of the business of W. A. Belcher Lumber Co. for the year 1941. The crucial question to be decided is whether, for Federal tax purposes, the W. A. Belcher Lumber Co. was a partnership composed of petitioner, his wife individually, and his wife as trustee for his four children, in 1941. We think that under the facts shown in our findings the answer to the question and the disposition of this case are controlled by Commissioner v. Tower, 327 U. S. 280; Lusthaus v. Commissioner, 327 U. S. 293; Abe Schreiber, 6 T. C. 707; Floyd D. Akers, 6 T. C. 693; Ed. Dubinsky Durwood, 6 T. C. 682; Lewis Coleman Benson, 6 T. C. 748; Howard B. Lawton, 6 T. C. 1093; and John Lang, 7 T. C. 6. In the Tower case the Court said: * * * If she [a wife] either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U. S. C. §§ 181, 182. * * * But when she [a wife] does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning of the federal revenue laws. Here it is clear that none of the capital invested in the business at the outset was capital “originating” with the wife individually or as trustee. We also think that the $20,000 borrowed from petitioner’s brother did not constitute capital “originating” with the wife individually or as trustee, for, while this amount constituted funds borrowed by the wife individually and as trustee, such amount was after-wards repaid by the business. Cf. Lusthaus v. Commissioner, supra. It is also clear that, as in" }, { "docid": "22728503", "title": "", "text": "federal law is controlling. Even if it were, we are pointed to no federal law of partnership which precludes the wife’s becoming a partner with her husband and making her contribution to capital from money or property given to her by her husband, as well as from any other source The Court’s opinion does not hold that income of husband and wife must be taxed as one. Congress has refused to do this although urged to do so.* It does not hold that a wife may not be a partner of her husband under some circumstances. It is said she may be “If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things . . . 26 U. S. C. §§ 181, 182.” Commissioner v. Tower, ante, p. 290. But as we read the Court’s opinion, it decides that a wife may not become a partner of her husband for federal income tax purposes, if the husband gives to her, directly or indirectly, the capital to finance her part of the partnership investment unless she also substantially participates in the management of the business or otherwise performs vital additional services. This conclusion we think is erroneous. There is no provision or principle of the Internal Revenue laws which prevents a husband from making a gift of property to his wife, even though his motive is to reduce his taxes, or which requires the income thereafter to be taxed to the husband if the gift is genuine and not pretended and he has retained no power to deprive the wife of the property or its income. We have pointed out that the amount of earnings to be allocated to petitioner’s managerial abilities is not in issue. There is no question but that the gift of $50,000 was complete, either in itself or joined with the subsequent transfer of a half interest in the partnership assets by payment of that $50,000 plus the additional cash and notes. On termination of the partnership," }, { "docid": "9671066", "title": "", "text": "the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U. S. C. §§ 181, 182. * * * But when she [a wife] does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning of the federal revenue laws. Here it is clear that none of the capital invested in the business at the outset was capital “originating” with the wife individually or as trustee. We also think that the $20,000 borrowed from petitioner’s brother did not constitute capital “originating” with the wife individually or as trustee, for, while this amount constituted funds borrowed by the wife individually and as trustee, such amount was after-wards repaid by the business. Cf. Lusthaus v. Commissioner, supra. It is also clear that, as in the Lusthaus, Schreiber, Durwood, and Lawton cases, the wife, neither in her individual capacity nor as trustee, rendered any services that were “vital” to the business, since the most that can be said as to those services is that they were of a minor character and were rendered only during those times when petitioner’s wife was not engaged in caring for her three young children, one of those children having been born only a few days before the beginning of the taxable year; and in this connection it would seem that, nothing to the contrary appearing, the wife was amply compensated for such services by the $250 per month paid her as a salary. Also, the wife rendered no services of a managerial nature, since the business was at all times within the exclusive management and control of petitioner, who made all decisions; and only the petitioner, or the bookkeeper upon petitioner’s authorization, could sign checks on the bank account of the business. The fact that petitioner from time to time discussed business problems with" }, { "docid": "11986841", "title": "", "text": "90 L.Ed. 670, 164 A.L.R. 1135, as follows; “There can be no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U.S.C. §§ 181, 182, 26 U.S.C.A. Int.Rev.Code §§ 181, 182. * * * But when she does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning O'f the federal revenue laws.” The latest pronouncement of the Supreme Court on the subject of partnerships under the income tax law is found in Commissioner v. Culbertson, 337 U.S. 733, 69 S.Ct, 1210, 1212, 93 L.Ed. 1659, which was decided subsequent to the decision of the Tax Court in the instant case. In the Culbertson case, the Supreme Court, in reversing a decision of the Tax Court on a question of a family partnership under the income tax law, observed that “The Tax Court read our decisions in Commissioner v. Tower, supra, and Lusthaus v. Commissioner, [327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. 679], supra, as setting out two essential tests of partnership for income-tax purposes: that each partner contribute to the partnership either vital services or capital originating with him. * * * It treated as essential to membership in a family partnership 'for tax purposes the contribution of either ‘vital services’ or ‘original capital.’ Use of these ‘tests’ of partnership indicates, at best, an error in emphasis. It ignores what we said is the ultimate question for decision, namely, ‘whether the partnership is real within the meaning of the federal revenue laws’ and makes decisive what we described as ‘circumstances (to be taken) into consideration’ in making that" }, { "docid": "9670871", "title": "", "text": "a partnership. Commissioner v. Tower, 327 U. S. 280. Where a husband and his wife, or a husband and his wife and children, have entered into a partnership arrangement and it appears from the facts that the wife and children made no investment of capital originating with them, that they have no voice in the management or control of the business, and that they contribute no vital services, those circumstances will justify this Court in concluding that a real partnership between them and the husband and father does not exist in so far as the Federal income tax law is concerned. Commissioner v. Tower, supra; Lusthaus v. Commissioner, 327 U. S. 293; Ed. Dubinsky Durwood, 6 T. C. 682; Floyd D. Akers, 6 T. C. 693; Abe Schreiber, 6 T. C. 707; Lewis Coleman Benson, 6 T. C. 748; John Lang, 7 T. C. 6; and W. A. Belcher, 7 T. C. 182. The evidence shows quite plainly that the children contributed no capital originating with them and contributed nothing to the management or control of the business. Their investment in the business was the one-sixth undivided interest in the assets which they each received from their respective fathers by way of gift contemporaneously with the formation of the partnership. The partnership agreement excluded the children from any voice in the management of the business. It provided that Scherf and Barnes should be managing partners and the children should be investing partners, and it gave Scherf complete control of the office and financial matters, while it placed Barnes in charge of all things pertaining to the manufacture of goods and the operation of the factories; and Scherf and Barnes testified that, in the separate spheres thus allotted to them, they exercised the powers of management exclusively, flor does the evidence disclose any services by the children which can be said to be “vital” to the business. John G. Scherf, Jr., and the Barnes girls were inexperienced minors and devoted a small part of their time to the performance for the S & B Manufacturing Co. of simple clerical service. Paul" }, { "docid": "9720407", "title": "", "text": "OPINION. Murdock, Judge: This is another case in which the Commissioner has refused to recognize for income tax purposes a family arrangement in the form of a, partnership agreement under which the wife and minor children rendered no services and brought no capital to the business owned and conducted by the husband, except as he attempted to divide among them a part of his existing interest in the business. It is now well established that all of the income of the business under such circumstances is taxable to the husband. Commissioner v. Tower, 327 U. S. 280; Lusthaus v. Commissioner, 327 U. S. 293; Floyd D. Akers, 6 T. C. 693; W. M. Mauldin, 5 T. C. 743; affd., 155 Fed. (2d) 666. Cf. Francis A. Parker, 6 T. C. 974. It is not contended that the children or the wife contributed anything to the business except what they had simultaneously received by alleged gifts from the petitioner. Some of the children worked during vacations and at odd times for the Lang Co., but the services they rendered were trivial, were adequately compensated for by small wages, and certainly would not show that the children were active partners in the business. The wife was not employed in the business, but it is said that the petitioner discussed all important matters with her and the children after the formation of the partnership. One of the children was ten years old. The oldest was eighteen. Obviously, the petitioner obtained no important aid from them in making the decisions which he had to make in running the business. The wife, in the Akers case, supra, likewise took an interest in the affairs, entertained business associates, and attended some meetings. The wife in the present case did no more after the formation of the partnership than she did before it was formed. She did not contribute services of a partner. We hold, upon authority of the cases cited, that the Commissioner did not err. There was no partnership for income tax purposes among the petitioner and the members of his family. It is unnecessary," }, { "docid": "20014993", "title": "", "text": "OPINION-. Van Fossan, Judge-. The respondent contends that the net rental income reported in the 1942 and 1943 partnership returns as distributable to petitioner’s wife as trustee for each of their four minor children is taxable to petitioner under section 22 (a) of the Internal Revenue Code and the rule enunciated in Helvering v. Clifford, 309 U. S. 331, and Harrison v. Schaffner, 312 U. S. 579. He further contends that the agreement of January 11, 1941, was ineffective to constitute Rose Maiatico, as trustee, a partner with the owners of the other fractional interests in the various properties held by them. Although the petitioner maintains that the January 11,1941, agreement created a valid partnership for income tax purposes, his contention, upon which most of his argument is based is that income derived from a fractional interest in real property owned absolutely by petitioner’s wife, as trustee, is not taxable to petitioner, citing George K. Brennen, 4 T. C. 1260; Paul G. Greene, 7 T. C. 142; and Edwin F. Sandberg, 8 T. C. 423. In those cases it was held that income derived from real property held by husband and wife as tenants by the entirety was taxable one-half to each spouse. The petitioner concedes that the tenancy of the petitioner and his wife, as trustee, is a tenancy in common. He contends, however, that the rule is the same with respect to the income therefrom. It is well settled that, in order to sustain a family partnership for tax purposes, it must be shown that the members of the family taken into the partnership either invested capital originating with them or substantially contributed to the control and management of the business, or otherwise performed vital additional services, or did all of these things. Commissioner v. Tower, 327 U. S. 280; Lusthaus v. Commissioner, 327 U. S. 293. The capital contributed to the partnership was transferred by petitioner to his wife, as trustee, as a gift, except for the fractional interest in the 2501 Q Street property, for which the wife as trustee gave her note in the amount" } ]

[ { "docid": "3245161", "title": "", "text": "if he had not been dissuaded from taking the witness stand by the fear of impeachment. Even if we further assume that Brown can raise his claim in § 2255 proceedings when it is clear that the claim would have failed on direct appeal, the Cook decision would provide no relief because there are no allegations concerning how Brown’s election not to take the stand actually prejudiced him. IV. Brown’s Parole Consideration. Brown attacks the parole authorities’ consideration of his parole eligibility. Brown claims that he has consistently been denied parole because his presentence report contains statements that he alleges are inaccurate or reflect constitutionally infirm prior convictions. He also claims that, when the district court sentenced him, it intended that he be eligible for “early” parole because sentence was imposed under 18 U.S.C. § 4208(a)(2) (now 18 U.S.C. § 4205(b)(2)). The district court was without jurisdiction to reach the merits of these claims in the context of the § 2255 proceedings. A petition under § 2255 can test only the sentence imposed and not the sentence “as it is being executed”. Ridenour v. United States, 446 F.2d 57 (9th Cir. 1971). A petition under 28 U.S.C. § 2241 is the proper form of proceeding for obtaining review of parole decisions. Tedder v. United States Board of Parole, 527 F.2d 593, 594 n. 1 (9th Cir. 1975). A petition under § 2241 must be addressed to the district court which has jurisdiction over Brown or his custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Because Brown is confined in the federal penitentiary in Leavenworth, Kansas, any complaints he has against the parole authorities must be addressed to the district court in the district of his confinement. Moreover, because the court below lacked jurisdiction of the parole board, it could not construe Brown’s § 2255 petition as a § 2241 petition. Andrino v. United States Board of Parole, 550 F.2d 519 (9th Cir. 1977). The case is remanded to the district court for proceedings consistent with the views expressed in" } ]

[ { "docid": "204547", "title": "", "text": "warrants, however.. Both Ciccone and the petitioners have filed appeals. I. JURISDICTION AND MOOTNESS Two preliminary issues must be resolved at the outset. The first is the power of the District Court for the Western District of Missouri to grant relief which appears to require some measure of participation by a party outside the jurisdiction of that court, the United States Board of Parole, which is headquartered in \"Washington, D.C. See Lee v. United States, 501 F.2d 494 (8th Cir. 1974); Ott v. United States, 326 F.Supp. 609 (W.D.Mo.1970). As noted above, Whittaker and Beshers had initially named the Board as a respondent, but the Magistrate deemed Ciccone the only proper respondent. It is now well established that an appropriate forum for habeas corpus relief is the United States District Court having jurisdiction over the custodian against whom the petition for the writ is directed. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Lee v. United States, supra; see Wilkins v. Erickson, 484 F.2d 970 (8th Cir. 1973). The petitioners in the instant cases have sought such relief against Dr. Ciccone, their custodian at Springfield, in their challenge to the lodging of detainers upon them without the opportunity for a prompt hearing on the unexecuted warrants underlying those detainers. As we have noted in cases involving state parole violation warrants, it is the immediate custodian who actually places the detainer on the prisoner, alters his conditions of confinement accordingly, and notifies the requesting authority upon the expiration of the inmate’s present term. Cooper v. Lockhart, supra, 489 F.2d at 312. Indeed, under federal statute the Director of the Medical Center has the authority to execute parole violation warrants, 18 U.S.C. § 4206, the event which triggers the hearing process, 18 U.S.C. § 4207. Moreover, even though the court below may have lacked jurisdiction over the Board itself, it did have personal jurisdiction over the institutional parole officers of the Medical Center (caseworkers), who together with Dr. Ciccone can supply the relief in question. It is also important to note that" }, { "docid": "15200770", "title": "", "text": "District Court for the Western District of Missouri transferred McCoy’s action to the District of Nebraska apparently pursuant to 28 U.S.C. § 1404(a). The court stated that absent extraordinary circumstances, not present in this case, the preferred forum for habeas corpus actions attacking Board of Parole procedures is the district of confinement. On September 15, 1975, following the transfer, the propriety of which McCoy did not then and does not now challenge, the District Court for the District of Nebraska dismissed the petition for lack of personal jurisdiction over the Board of Parole. McCoy filed a timely notice of appeal and the District Court granted a certificate of probable cause. Shortly after the dismissal of his petition, McCoy was transferred as an alleged parole violator to the El Reno, Oklahoma, Federal Reformatory in the Western District of Oklahoma, where he is presently incarcerated. On November 12, 1975, the United States Board of Parole, through its South Central Region office in Dallas, Texas, issued a supplement to the warrant of April 9,1975, reflecting McCoy’s Nebraska misdemeanor convictions. 28 U.S.C. § 2241(a) provides that“[w]rits of habeas corpus may be granted by * * * the district courts * * * within their respective jurisdictions.” 28 U.S.C. § 2243 further provides that the “writ, or order to show cause shall be directed to the person having custody of the person detained.” As the Supreme Court recognized in Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 495, 93 S.Ct. 1123, 1130, 35 L.Ed.2d 443, 452-53 (1973): Read literally, the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ “within its jurisdiction” requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court’s territorial jurisdiction. Jurisdiction under 28 U.S.C. § 2241 thus lies not only in the district of actual physical confinement but" }, { "docid": "11654905", "title": "", "text": "time he did because he was not a refugee 3. Removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for being an aggravated felon 4. Removable under 8 U.S.C. § 1227(a)(4)(B) for engaging in terrorist activities On December 6, 2004 and December 7, 2004, an Immigration Judge conducted a removal hearing on all of the removal charges and on Petitioner’s application for deferral of removal under the United Nations Convention Against Torture. On December 29, 2004, the immigration judge issued a lengthy written decision sustaining all of the charges of removability, denied Petitioner’s deferral application, and ordered him removed to Turkey. Petitioner has filed an appeal of this removal decision to the BIA, where it is pending. The appeal is proceeding on a expedited basis; briefing is now complete. III. Analysis A. Jurisdiction Respondent says that the Court lacks jurisdiction over the proper respondent in this case and that venue is improper in this district. In a habeas corpus proceeding under 28 U.S.C. § 2241, the appropriate forum is governed by two factors: (1) whether the court has personal jurisdiction over petitioner’s custodian; and (2) whether petitioner satisfies traditional venue considerations. A court has personal jurisdiction “so long as the custodian can be reached by service of process.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Section 2243, of Title 28 requires the writ of habeas corpus to be directed to the “person having custody of the person detained,” 28 U.S.C. § 2243, but does not indicate who the proper custodian is. In Roman v. Ashcroft, 340 F.3d 314 (6th Cir.2003), the Court of Appeals for the Sixth Circuit held that the “immediate custodian” rule applies in immigration habeas cases. Under this rule, the Sixth Circuit held that the INS District Director for the district where a detention facility is located is the proper respondent. The Sixth Circuit explained: Pursuant to the immediate custodian rule, a prisoner filing a habeas petition should generally name the as a respondent the warden of the prison where he is confined. Similarly, a detained alien filing" }, { "docid": "21992923", "title": "", "text": "Act of Feb. 5,1867, ch. 28, § 1,14 Stat. 385. That guarantee can be found in its current form at § 2241 of the Judicial Code, which provides that federal judges may giant the writ of habeas corpus on the application of a prisoner held “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The prisoner must direct his petition to “the person who has custody over him.” § 2242; see also Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Longstanding practice under this immediate custodian rule “confirms that in habeas challenges to present physical confinement ... the default rule is that the proper respondent is the warden of the facility where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 124. S.Ct. 2711, 159 L.Ed.2d 513 (2004). And under the statute’s jurisdiction of confinement rule, district courts may only grant habeas relief against custodians “within their respective jurisdictions.” § 2241(a); see also Braden, 410 U.S. at 495, 93 S.Ct. 1123 (“[T]he language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian”). An increase in the number of federal habeas petitions produced serious administrative problems and overburdened the few district courts in the jurisdictions with major federal prisons. See United States v. Hayman, 342 U.S. 205, 210-19, 72 S.Ct. 263, 96 L.Ed. 232 (1952). Congress responded in 1948 by enacting 28 U.S.C. § 2255. Pub. L. No. 80-773, ch. 646, 62 Stat. 967-68. A new remedial mechanism, § 2255 “replaced traditional habeas corpus for federal prisoners (at least in the first instance) with a process that allowed the prisoner to file a motion with the sentencing court on the ground that his sentence was, inter alia, imposed in violation of the Constitution or laws of the United States.” Boumediene v. Bush, 553 U.S. 723, 774, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (internal" }, { "docid": "22361728", "title": "", "text": "The Court of Common Pleas of Beaver County, Pennsylvania, sentenced Barden to a term of eleven-to-thirty years on the state charges on November 12, 1975, and ordered that the state sentence run concurrently with the federal sentence. Barden then began to serve his state sentence in the State Correctional Institution at Rock-view, Pennsylvania, where a federal detain-er was lodged against him. On April 6, 1976, an additional state sentence of one-to-five years, consecutive to the previous state sentence of eleven to thirty years, was imposed on Barden on other charges. Barden was paroled from state custody on December 15, 1986, and turned over to federal authorities under the detainer. He entered the Lewisburg Penitentiary on February 12, 1987, and began serving his twenty-year federal sentence for bank robbery. Beginning May 7, 1987, Barden, attempting to gain credit for the time he served in state prison by having the State Correctional Institution at Rockview designated a federal facility nunc pro tunc, sought administrative relief from the Bureau. When these efforts failed, he sought judicial relief in the district court. III. The district court had jurisdiction over Barden’s habeas corpus petition pursuant to 28 U.S.C.A. § 2241 (West 1971). Bar-den’s petition is actionable under § 2241 because he is in custody and he attacks the term of that custody. See Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S.Ct. 1827, 1835, 36 L.Ed.2d 439 (1973); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488-89, 93 S.Ct. 1123, 1126, 35 L.Ed.2d 443 (1973); Peyton v. Rowe, 391 U.S. 54, 66-67, 88 S.Ct. 1549, 1555-56, 20 L.Ed.2d 426 (1968); Chatman-Bey v. Thornburgh, 864 F.2d 804, 806-10 (D.C.Cir.1988) (in banc) (habeas action under § 2241 proper and exclusive remedy to compel consideration of federal prisoner’s claim that prison authorities failed to properly aggregate consecutive sentences in determining parole eligibility). These eases necessarily imply that issues which affect a prisoner’s term are fundamental issues of liberty that fall within our jurisdiction under 28 U.S. C.A. § 2241 (West 1971). We do not think this is affected by the fact that Barden remains dependent" }, { "docid": "12159683", "title": "", "text": "oral argument Judge Knapp suggested that the local revocation hearing be granted since the Board of Parole was scheduled to meet at the Metropolitan Correctional Center on November 4, a full month before their next meeting at Lewis-burg. At the hearing before the Board of Examiners on November 4, where Shelton was represented by the Legal Aid Society, his good record in the prison educational program was further documented through letters from teachers and administrators and through testimony by Shelton’s education advisor. Also, Shelton explained that he had committed the state robbery only after being threatened and pistol-whipped by loan sharks, and that he had used only a toy gun. The Board of Examiners revoked parole but said that Shelton should be re-paroled on January 20, 1976. On November 28, 1975 the Board of Parole affirmed; and Shelton was re-paroled on January 20 with parole supervision in New Jersey. After further briefing and argument on the due process claims, Judge Knapp dismissed the petition on August 4, 1976, finding that he had no jurisdiction under 28 U.S.C. § 2241 over the detainer or its consequences since both the lodging of the de-tainer and the imposition of the original federal sentence had occurred in New Jersey. We disagree with the district court’s jurisdictional holding. When both the challenged custody and the custodian are within the same district, habeas corpus jurisdiction is clearly available there. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Parole or subsequent removal of the petitioner from the state does not divest the court of its jurisdiction if the respondent is still present in the district. See Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Ex parte Endo, 323 U.S. 283, 306, 65 S.Ct. 208, 89 L.Ed. 243 (1944). Thus, jurisdiction was available in the Southern District of New York even though it was not the situs of the detainer or the original federal sentencing. Although the government suggests the district court might properly have abstained from exercising jurisdiction on" }, { "docid": "21590715", "title": "", "text": "exercise some control over the petitioner to satisfy the “in custody” requirement, see Birdsell, 834 F.2d at 921-22 (habeas petitioner who completed Alabama prison sentence and whose Alabama probation could not be revoked, was not “in custody” in Alabama); Aziz, 830 F.2d at 186 (Florida district court had subject matter jurisdiction over habeas petition brought by New York prisoner because petition attacked validity of prior Florida conviction used to enhance New York sentence). The precise issue in this case is whether Stacey, who escaped from an Alabama prison after serving only one year of a 30 year sentence, is sufficiently “in custody” in Alabama to give the district court subject matter jurisdiction over his habeas petition. Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) provides some guidance on this issue. The petitioner in Braden escaped from the custody of Kentucky officials while awaiting trial on an indictment returned by a Kentucky grand jury and remained at large until his arrest in Alabama three months later. Convicted of certain unspecified felonies in Alabama, the petitioner was sentenced to Alabama state prison, where he was confined when he filed a federal habeas corpus petition attacking the validity of the Kentucky indictment, which supported a detainer lodged against him by officials of that state. Reasoning that the Alabama warden acted as Kentucky’s agent in holding the petitioner pursuant to the Kentucky detainer, the Supreme Court concluded that the petitioner was sufficiently “in custody” in Kentucky for purposes of 28 U.S.C. § 2241(c)(1). Id. at 489 n. 4, 93 S.Ct. at 1126 n. 4. The Court explicitly declined to decide whether the petitioner would satisfy the “in custody” requirement if Kentucky had not lodged a detainer against him. Id. at 489 n. 4, 93 S.Ct. at 1126 n. 4. At oral argument, Stacey’s lawyer stated that he thought Alabama had lodged a detainer warrant against his client; the written record, however, does not support this conjecture, although the state may have lodged the detainer warrant after the record was filed. We remand for the district court" }, { "docid": "14578369", "title": "", "text": "state courts, the court found exhaustion not required because Thompson did not raise a colorable federal claim. See Granberry v. Greer, 481 U.S. 129, 136, 107 S.Ct. 1671, 1676, 95 L.Ed.2d 119 (1987). The court also adopted the magistrate's report and recommendation, in which the magistrate excused Thompson’s failure to exhaust in light of previous findings by this court that Missouri courts have acted vindictively against Thompson, rendering exhaustion futile. The court then considered the petition on the merits and found that Mo.Ann.Stat. § 558.011 applied only to prisoners convicted of offenses committed after 1979. Thus, the statute was inapplicable to Thompson, who committed his offense in 1961. Having denied Thompson’s substantive claim, the court denied the temporary restraining order request as moot. This appeal followed. II. In reviewing the district court’s order we first note that habeas corpus is the proper vehicle for challenging a state detainer. The Missouri detainer makes Thompson “a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a) (1988). The fact that Thompson seeks relief from future detention does not bar habeas review. Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989); Braden v. 30th Judicial Circuit Ct., 410 U.S. 484, 488-89 & n. 4, 93 S.Ct. 1123, 1126-27 & n. 4, 35 L.Ed.2d 443 (1973). Proper venue lies in the District of Minnesota, as that court has jurisdiction over Thompson’s present custodian. Braden, 410 U.S. at 494-95, 93 S.Ct. at 1129-30. Upon review of the record, we find no error in the district court’s decision. The exhaustion rule is not a rule of jurisdiction, and sometimes “the interests of comity and federalism will be better served by addressing the merits forthwith.” Granberry, 481 U.S. at 134, 107 S.Ct. at 1675. This is particularly true when the claim is non-meritorious. Id. at 135, 107 S.Ct. at 1675. With regard to the merits, the Missouri conditional release statute on its face does not apply to Thompson’s conviction. See Mo.Ann.Stat. § 558.011 (Vernon Supp.1991). That statute is part of Missouri’s revised criminal code, which is effective" }, { "docid": "10099789", "title": "", "text": "to lack of jurisdiction under section 2254. We believe the court erred in resting its decision on this jurisdictional basis. Dickerson’s petition does not explicitly refer to section 2254 as the basis of the district court’s jurisdiction. Throughout his habeas proceedings, Dickerson has been pro se until this court appointed counsel to represent him in this appeal. Under the circumstances, we will construe Dickerson’s petition as seeking relief pursuant to 28 U.S.C. § 2241. Cf. Fisher v. Rose, 757 F.2d 789, 792 n. 2 (6th Cir.1985) (construing an improper section 2254 petition pursuant to section 2241 even though petitioner was represented by counsel). B. We now turn to an examination of whether Dickerson is entitled to raise his speedy trial and due process claims in a federal habeas proceeding at this time. In order to be eligible for habeas relief, a petitioner must be “in custody” and must have exhausted his available state remedies. We conclude that Dickerson is “in custody” for purposes of section 2241. In Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), charges were pending in Kentucky against a petitioner who was incarcerated in Alabama. Although Kentucky lodged a detainer against him, the state refused to attempt to effect his return in the near future and to grant him a trial as he had repeatedly requested. After it became evident that the state court would do nothing, the petitioner applied for federal habeas relief; he requested that Kentucky be ordered to secure his presence for trial within sixty days or dismiss the indictment. In concluding that the petitioner was “in custody” for purposes of section 2241(c)(3), the Supreme Court reasoned that the Alabama warden was acting as the agent of Kentucky in holding the petitioner pursuant to the Kentucky detainer. Braden, 410 U.S. at 489 n. 4, 93 S.Ct. at 1126 n. 4. The same analysis applied to the instant case leads to the conclusion that the federal government was acting as the agent of Louisiana when it held Dickerson pursuant to the Louisiana detainer. Accordingly, Dickerson" }, { "docid": "20804610", "title": "", "text": "GURFEIN, District Judge: Nature of Application The petitioner, presently incarcerated in the United States Penitentiary, Lewisburg, Pennsylvania, makes application to this Court by petition for a writ of habeas corpus for a new trial or for modification of the indeterminate sentence, not to exceed 20 years, imposed by a New York State court after a plea of guilty to the charge of first degree Arson on May 6, 1971. (Penal Law, Sec. 150.15 (McKinney 1967)). Jurisdiction Petitioner challenges the validity of the detainer lodged against him by the State of New York. He does not contest the validity of his federal sentence. Under the rationale of Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L. Ed.2d 426 (1968), a prisoner is not precluded from seeking habeas relief as to a sentence scheduled for future service. This overruling of the prematurity doctrine of McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), permits a prisoner, as in the ease here, to challenge the longer of .two concurrent sentences, Lydy v. Beto, 399 F.2d 59 (5 Cir. 1968), and has enabled a petitioner held in one state to attack a detainer lodged against him by another state, George v. Nelson, 410 F.2d 1179 (9 Cir. 1969), aff’d, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970). Petitioner commenced this habeas corpus action in the United States District Court for the Middle District of Pennsylvania, the district in which he is currently incarcerated. On the authority of Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), that court concluded that jurisdiction was properly founded in the Southern District of New York as the court located nearest the site of the underlying controversy, and transferred the case pursuant to 28 U.S.C. § 1404(a). Exhaustion of State Remedies Petitioner appears to have complied with the requirement of 28 U.S.C. § 2254(b) that he exhaust his state court remedies before presenting his claim to the Federal Court. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)." }, { "docid": "15200771", "title": "", "text": "convictions. 28 U.S.C. § 2241(a) provides that“[w]rits of habeas corpus may be granted by * * * the district courts * * * within their respective jurisdictions.” 28 U.S.C. § 2243 further provides that the “writ, or order to show cause shall be directed to the person having custody of the person detained.” As the Supreme Court recognized in Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 495, 93 S.Ct. 1123, 1130, 35 L.Ed.2d 443, 452-53 (1973): Read literally, the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ “within its jurisdiction” requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court’s territorial jurisdiction. Jurisdiction under 28 U.S.C. § 2241 thus lies not only in the district of actual physical confinement but also in the district where a custodian responsible for the confinement is present. The custodian is, in most circumstances, the warden or chief administrative official of the correctional institution in which the petitioner is incarcerated. It is the action of the United States Board of Parole and not that of the warden of the Lancaster County jail, how ever, which McCoy challenges in the instant petition. Since McCoy was incarcerated in the Lancaster County jail through the mechanism of a federal parole violation warrant and detainer issued by the Board of Parole, one of his custodians for purposes of habeas corpus jurisdiction is the Board of Parole. See Jones v. Johnston, 534 F.2d 353, 357 (D.C.Cir., 1976); Lee v. United States, 501 F.2d 494, 501 (8th Cir. 1974). Cf. Braden v. 30th Judicial Circuit Court, supra, 410 U.S. at 498-99, 93 S.Ct. at 1131-32, 35 L.Ed.2d at 454-55. Since the “writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to" }, { "docid": "10099790", "title": "", "text": "410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), charges were pending in Kentucky against a petitioner who was incarcerated in Alabama. Although Kentucky lodged a detainer against him, the state refused to attempt to effect his return in the near future and to grant him a trial as he had repeatedly requested. After it became evident that the state court would do nothing, the petitioner applied for federal habeas relief; he requested that Kentucky be ordered to secure his presence for trial within sixty days or dismiss the indictment. In concluding that the petitioner was “in custody” for purposes of section 2241(c)(3), the Supreme Court reasoned that the Alabama warden was acting as the agent of Kentucky in holding the petitioner pursuant to the Kentucky detainer. Braden, 410 U.S. at 489 n. 4, 93 S.Ct. at 1126 n. 4. The same analysis applied to the instant case leads to the conclusion that the federal government was acting as the agent of Louisiana when it held Dickerson pursuant to the Louisiana detainer. Accordingly, Dickerson satisfies the “in custody” requirement of section 2241(c)(3). C. The next issue we must examine is whether Dickerson has exhausted his state remedies. In discussing exhaustion in the habeas corpus context, we must distinguish between pre-trial and post-trial situations. It is only in the post-trial setting that exhaustion is mandated by statute. Compare 28 U.S.C. § 2254(b) with 28 U.S.C. § 2241(c)(3). Section 2241(c)(3), which empowers district courts to issue the writ before a judgment is rendered in a criminal proceeding, makes no reference to exhaustion. Despite the absence of an exhaustion requirement in the statutory language of section 2241(c)(3), a body of case law has developed holding that although section 2241 establishes jurisdiction in the federal courts to consider pre-trial habeas corpus petitions, federal courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner. See, e.g., Braden, 410 U.S. at 489-92, 93 S.Ct. at 1126-28; Ex" }, { "docid": "6903574", "title": "", "text": "district court should have directed its clerk to serve Allen’s petition on the federal warden. See 28 U.S.C. § 2243. The failure to effect service on the warden of the federal prison deprived the district court of personal jurisdiction over the proper respondent. “The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.” Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Section 2242 of Title 28 states in pertinent part that an application for a writ of habeas corpus “shall allege ... the name of the person who has custody over him and by virtue of what claim or authority, if known.” 28 U.S.C. § 2242. In Dunne v. Henman, 875 F.2d 244 (9th Cir.1989), we stated that where a prisoner files a § 2241 petition challenging the manner of execution of his sentence, the “prisoner must name the warden of the penitentiary where he is confined as respondent.” Id. at 249; see also Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.1992)(explaining that a federal habeas petitioner’s immediate custodian is the only party that can actually produce the body of the petitioner). Citing Dunne, we held in Stanley v. California Supreme Court, 21 F.3d 359 (9th Cir.1994), that “[fjailure to name the petitioner’s custodian as a respondent deprives federal courts of personal jurisdiction.” Id. at 360. The district court’s failure to order that Allen’s federal custodian be served deprived the court of in personam jurisdiction over an indispensable party. See Morehead v. California, 339 F.2d 170, 171 (9th Cir.1964)(holding that “a petition for a writ of habeas corpus must be dismissed for want of an indispensable party where the party under whose custody the prisoner is detained has not been named, or served, as respondent”). CONCLUSION The district court’s order granting the State of Oregon’s motion to dismiss Allen’s amended petition was premised on the court’s initial determination that Allen was no longer in state custody. Pursuant to the holdings" }, { "docid": "22947663", "title": "", "text": "resolution of the dispute raised by a habeas petition. All the material events would usually have taken place, and all the records and witnesses were generally to be found, near the court which had originally imposed the confinement. Moreover, restriction of jurisdiction to the locus of confinement had the singular disadvantage of imposing on those district courts near detention facilities the burden of entertaining all collateral actions brought by inmates in those prisons. In an effort to rescue the courts from a calamity of their own making, Congress in 1966 enacted § 2241(d), which specified that a habeas corpus petition could also be filed in the federal district in which the court which had entered judgment and sentence was located. See S. Rep. No. 1502, 89th Cong., 2d Sess. (1966); H.R. Rep. No. 1894, 89th Cong., 2d Sess. (1966). Helpful though it was, the remedy was not complete enough to undo the damage done by Ahrens’s narrow jurisdictional interpretation of § 2241(a). The inadequacy was most convincingly demonstrated by the problem of interstate detainer. In Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), an inmate confined in an Alabama state prison after a felony conviction applied for habeas corpus relief in the Federal District Court for the Western District of Kentucky, seeking to attack a pending Kentucky indictment. Relying in large measure upon the liberalization of intrastate habeas effected by § 2241(d), as well as the post-Ahrens provision of 28 U.S.C. § 2243 (presence of petitioner not required when application presents only issues of law), the Court held that: So long as the custodian can be reached by service of process, the court can issue a writ “within its jurisdiction” [for purposes of § 2241 (а) ] . . ., even if the prisoner himself is confined outside the court’s territorial jurisdiction. 410 U.S. at 495, 93 S.Ct. at 1130. With respect to Braden’s claim the state of Kentucky was the real custodian, since for purposes of the detainer pursuant to the pending indictment the Alabama correctional officials acted only" }, { "docid": "18560117", "title": "", "text": "procedures (as a predicate to awarding damages), of course, does not implicate the validity of the prisoners’ convictions. By contrast, Monk seeks damages that result directly from the fact of his conviction. In order to grant the damages Monk requests, therefore, the court must first determine the validity of Monk’s conviction. But this determination, unlike the one involved in Wolff, might result in Monk’s release from prison and, therefore, must be made in an action for habeas corpus. III. Monk next argues that even if his action must be characterized as a petition for a writ of habeas corpus, the district court nevertheless properly exercised jurisdiction. Monk claims that jurisdiction lies not only in the judicial district in which his immediate custodian is located, but also in the district where the “ultimate custodian” resides. See Brief for Appellee at 11. Thus, Monk asserts that application in the District of Columbia is proper and that, in arguing to the contrary, “[t]he Secretary attempts to confuse jurisdiction with venue. Id. (emphasis in original). We cannot accept Monk’s argument. The statute provides that “[wjrits of habe-as corpus may be granted by ... the district courts ... within their respective jurisdictions.” 28 U.S.C. § 2241(a) (1982). Originally, this language was interpreted to mean that jurisdiction was proper only in the district in which the petitioner was located, usually the district of incarceration. See Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). Subsequently, however, the Supreme Court has held that “the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian,” “even if the prisoner himself is confined outside the court’s territorial jurisdiction.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 1130, 35 L.Ed.2d 443 (1973). In Braden, an Alabama prisoner applied to a district court in Kentucky for a writ of habeas corpus. The prisoner did not challenge the validity of his Alabama conviction. Rather, he attacked the validity of a three-year-old Kentucky indictment which was the basis for a detainer lodged against" }, { "docid": "22425656", "title": "", "text": "of the lower courts in a cause under review.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (internal quotations omitted). We review de novo the district court’s assumption of jurisdiction over the habeas petition. See United States v. Barton, 26 F.3d 490, 491 (4th Cir.1994). Habeas petitions are usually filed under § 2255 in the court that imposed the prisoner’s sentence. When § 2255 “appears ... inadequate or ineffective to test the legality of his detention,” § 2255(e), however, a federal prisoner may seek habeas relief from the court in the district of his confinement under § 2241. In re Jones, 226 F.3d at 333-34. Section 2241 begins, “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” § 2241(a). A § 2241 petition should name as respon-. dent “the person who has custody over [the prisoner].” § 2242; see also § 2243 (“The writ, or order to show cause shall be directed to the person having custody of the person detained.”). As the Supreme Court explained long ago, “these provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary.” Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885) (emphasis added). This “immediate custodian rule” is the default, and is “generally] applicable] ... to habeas petitions challenging physical custody.” Padilla, 542 U.S. at 436, 124 S.Ct. 2711. The rule governing jurisdiction naturally follows from the “immediate custodian rule”: a district court properly exercises jurisdiction over a habeas petition whenever it has jurisdiction over the petitioner’s custodian. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). The question of whether the Maryland federal district court had jurisdiction over Poole’s § 2241 petition turns, therefore, on whether Poole’s “custodian”" }, { "docid": "18560118", "title": "", "text": "argument. The statute provides that “[wjrits of habe-as corpus may be granted by ... the district courts ... within their respective jurisdictions.” 28 U.S.C. § 2241(a) (1982). Originally, this language was interpreted to mean that jurisdiction was proper only in the district in which the petitioner was located, usually the district of incarceration. See Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). Subsequently, however, the Supreme Court has held that “the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian,” “even if the prisoner himself is confined outside the court’s territorial jurisdiction.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 1130, 35 L.Ed.2d 443 (1973). In Braden, an Alabama prisoner applied to a district court in Kentucky for a writ of habeas corpus. The prisoner did not challenge the validity of his Alabama conviction. Rather, he attacked the validity of a three-year-old Kentucky indictment which was the basis for a detainer lodged against him by Kentucky officials. The Court first held that the prisoner was “in custody” in Kentucky within the meaning of 28 U.S.C. § 2241(c)(3) by virtue of the interstate de-tainer. See 410 U.S. at 488-89, 93 S.Ct. at 1126. The Court next held that since his dispute was with his Kentucky “custodians,” jurisdiction was proper in federal district court in Kentucky. See id. at 494-99, 93 S.Ct. at 1129-32. “Under these circumstances it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama.” Id. at 499, 93 S.Ct. at 1132. After Braden, a prisoner may apply for a writ of habeas corpus either in the district where he is incarcerated or, if different, the district in which his custodian is located. As noted at the outset, Monk is incarcerated at Fort Leavenworth, Kansas and his custodian is the commandant of that facility. Monk concedes that under Braden, he could have brought this action in the federal district court in Kansas where both he and his custodian" }, { "docid": "13298176", "title": "", "text": "Jones’ attorney suggested that the dispute might be settled if the detainer were withdrawn to permit access to rehabilitative programs. The Board acquiesced and withdrew the detainer temporarily to allow Jones to participate in rehabilitative programs, with the understanding that the warrant again would be lodged shortly before the expiration of the intervening sentence. Jones then urged that the warrant be quashed because of the delay in holding a dispositional hearing. On January 9, 1974, the District Court granted Jones’ request and ordered that the violator warrant be can-celled for failure to provide a prompt revocation hearing. II. CUSTODY Appellants argue that appellees are not “in custody” for the purpose of habeas corpus jurisdiction. This contention, which may have had merit under the “prematurity doctrine” of McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), has been undercut by later cases. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) (habeas will lie to challenge future sentence consecutive to that being served); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) (federal prisoner constitutionally entitled to speedy trial on pending indictment for offense under state law); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (state prisoner is “in custody” for purpose of federal habeas corpus challenge to denial of his constitutional right under Smith v. Hooey to speedy trial on pending indictment in another state). We hold that a parole violator warrant lodged as a detainer represents sufficient “custody” of a parolee-prisoner to support habeas corpus jurisdiction under 28 U.S.C. § 2241. III. THE RIGHT TO A PROMPT HEARING In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court ruled that due process requires a “preliminary” and “final” hearing for revocation of parole or probation. The parties here agree that the need for the preliminary, or “probable cause” hearing is eliminated in these cases by the conviction" }, { "docid": "319861", "title": "", "text": "the instant appeal, the District Court had both subject matter jurisdiction and the authority by reason of in personam jurisdiction to direct the North Carolina officials by way of affirmative injunctive relief to give no effect to the Georgia and Louisiana detainers so far as petitioner’s status as a North Carolina prisoner was concerned. We think, however, that the challenge to the validity of the underlying charges stands on a different footing for under the facts of this case, the District Court had no capacity, within its geographic boundaries, to enforce its order — a power dependent upon the valid exercise of in personam jurisdiction. At no point in its orders did the District Court indicate the circumstances under which it presumed to have acquired in personam jurisdiction of the States of Georgia and Louisiana and their prosecuting officials. In asserting “jurisdiction” over petitioner’s attack on the validity of the pending criminal charges, the District Court instead relied on Braden v. 30th Judicial Circuit Court of Ky. (1973), 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443. Braden, in stark contrast to the facts of this appeal, involved an Alabama prisoner who attacked the validity of a Kentucky detainer based on pending criminal charges by petitioning for a writ of habeas corpus in the federal district court of Kentucky, the demanding state. But the Kentucky District Court’s capacity to enforce its order was not questioned for, as the Court expressly noted, the “respondent was properly served” within the Western District of Kentucky, which was his domicile for personal jurisdiction purposes. Thus Braden dealt only with the question of the District Court’s exercise of subject matter jurisdiction as imposed by the language of the federal habeas corpus statute, 28 U.S.C. § 2241(a), requiring the petitioner to be “in custody” within the jurisdiction of the issuing court. By holding that the state detaining the petitioner in immediate confinement acted as an agent for the demanding state that filed the detainer, the Braden Court avoided the “slavish application” of the rule of Ahrens v. Clark (1948), 335 U.S. 188, 68 S.Ct. 1443, 92" }, { "docid": "22425657", "title": "", "text": "be directed to the person having custody of the person detained.”). As the Supreme Court explained long ago, “these provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary.” Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885) (emphasis added). This “immediate custodian rule” is the default, and is “generally] applicable] ... to habeas petitions challenging physical custody.” Padilla, 542 U.S. at 436, 124 S.Ct. 2711. The rule governing jurisdiction naturally follows from the “immediate custodian rule”: a district court properly exercises jurisdiction over a habeas petition whenever it has jurisdiction over the petitioner’s custodian. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). The question of whether the Maryland federal district court had jurisdiction over Poole’s § 2241 petition turns, therefore, on whether Poole’s “custodian” was the warden of the Maryland state prison, over whom the Maryland federal district court has jurisdiction, or the warden of the Kentucky federal prison, Poole’s “original place of incarceration” to which he was slated “to return ... at [the] conclusion of proceedings [before the Maryland federal district court],” J.A. 85, over whom the court does not have jurisdiction. B. The government argues that the district court wrongly exercised jurisdiction over Poole’s § 2241 petition because neither its issuance of the writ of habeas corpus ad testificandum nor its order keeping Poole in Maryland transmuted Poole’s temporary presence in the district into a permanent stay that effected a change in custodian. We agree. 1. This court has not had the occasion to address the question of whether an extraterritorial writ of habeas corpus ad testificandum changes the identity of a prisoner’s “immediate custodian” for purposes of § 2241 jurisdiction. This court has held, however, in a related context, that the writ of habeas corpus ad prosequendum, issued to bring a prisoner to his own trial," } ]

[ { "docid": "18207835", "title": "", "text": "89th Cong., 2d Sess. 34 (1966), as set forth in full below: “The bill also provides a formula for determining the price the Government must pay where it redeems property sold in proceedings where the Government is joined as a party (under this section), and where it is sold in foreclosures other than plenary judicial proceedings. The redemption price is to be the amount paid by the purchaser at the foreclosure sale plus interest at the statutory rate (6 percent) from the date of sale. Where the purchaser at the sale is the person whose lien is being foreclosed, the amount paid by him includes the amount of the debt underlying his lien to the extent that the lien is satisfied by the sale. Where the lien is fully satisfied, the purchaser is not to receive less than the amount due him at the time of sale. Where the lien attaches to other property, however, or where, after the sale, the purchaser still has the right to sue for the unpaid balance of the amount due him, the amount paid does not include this unpaid balance. “In addition to the price paid by the purchaser plus interest, in order to redeem property, the Government must pay, as part of the redemption price, the excess, if there is any, of any expenses incurred after the foreclosure sale in maintaining the property over the income from the property during this period. Where the property is not rented out but is used by the purchaser, the income includes the reasonable rental value of the property.” It is significant that the legislative history of H.R. 11256, as set forth above, indicates an affirmative intent on the part of Congress to provide an equitable balance between the Government and the taxpayer. No member of Congress indicated a contrary intent. It is also significant that there is no indication in the legislative history of any intent to change the law as to what the Government must do upon redemption as set forth in First National Bank and Trust Company v. MacGarvie, supra, and United States v." } ]

[ { "docid": "14764762", "title": "", "text": "(1) ) at 6 percent per annum from the date of such sale, and (3) the amount (if any) equal to the excess of (A) the expenses necessarily incurred in connection with such property, over (B) the income from such property plus (to the extent such property is used by the purchaser) a reasonable rental value of such property. The part of the language of § 2410(d) which gives rise to this litigation is that in subparagraph (1) — “the actual amount paid by the purchaser . which [since Equity was the lienor and purchaser] shall include the amount of the obligation ... to the extent satisfied by reason of such sale . . . ” (emphasis added). The language is troublesome because one is required to look to state law to determine the effect of the lienor’s purchase of the property at foreclosure on the overall obligation, and the laws of the various states differ. It is not disputed that, under the applicable Virginia law, Equity’s lien was satisfied only to the extent of the purchase price ($1,000), less the expenses of sale ($198.05), and that Equity would be entitled to a deficiency judgment against Mr. and Mrs. Loftus for the remaining unpaid balance. But this is not necessarily true in other states and, hence, § 2410(d)(1) may have a different effect in them in prescribing what the government must pay if it exercises its right to redeem. That there are these differences in state law and that therefore § 2410(d) (1) prescribes a shifting quantum of redemption price depending upon the state in which it is applied are fully recognized in the examples to 26 C.F.R. § 400.5-l(c) (2), the temporary regulations to the Federal Tax Lien Act of 1966, and, specifically, to subparagraph (1) (i), which is a restatement of § 2410 (d)(1). They follow: Example (1). A, a delinquent taxpayer, owns Blackaere located in X State upon which B holds a mortgage. After the mortgage is properly recorded, a notice of tax lien is filed which is applicable to Blackaere. Subsequently, A defaults on the mortgage" }, { "docid": "18207842", "title": "", "text": "intends to redeem or to forfeit any balance still owed to him. The precise language of section 2410 (d) (1), does not preclude the obligation of the grantors to the lienholders, Equity Mortgage, being “satisfied” in full by Equity Mortgage’s filing a waiver to any further recourse against the grantors at any reasonable point in time. In a state where no deficiency judgments are allowed, even the Internal Revenue Service agrees that the Government must pay the full amount of the grantor’s obligation to the lienholder in order to redeem. Temp.Treas.Reg. § 400.5-1 (e) (2) example 1 (T.D. 6944, filed 1-19-68), quoted in 5 PH Federal Taxes, para. 38830. When the lienholder waives any right to a deficiency from the grantor then it is in the same position as if the state law prohibited such judgments. As discussed above, neither the literal wording of the statute nor the legislative history indicates that the lienholder should not be allowed to elect such a waiver, if and when the Government elects to proceed with its right of redemption. There, we hold that where, as in the case at bar, the lienholder has agreed to assign any rights against the grantors to the Government, or to waive any right to a deficiency judgment against the grantors, then whether the lienholder takes such action before or after the foreclosure sale, the Government, in order to redeem the property purchased by this lienholder, must pay the lienholder the amount paid by the purchaser at the sale (with interest), plus the full balance still owing under the second deed of trust. Furthermore, because the lienholder should not have to make an unconditional anticipatory renunciation of his potential rights against the grantors, we hold that Equity Mortgage may condition its renunciation on the Government’s election to redeem with full payment as set forth in this opinion. Turning to the question of the payments by Equity Mortgage to Mutual Federal, we hold that although section 2410(d) makes no explicit provision for reimbursement for these payments, the same interpretation of Congressional intent should apply to prevent a forfeiture. We" }, { "docid": "18207841", "title": "", "text": "purchased at foreclosure sale] does not include this unpaid balance [still due the purchaser from the person whose property is foreclosed.] ” Because of the importance placed on this statement by the Government, it requires close examination. In light of the legislative history cited supra, we think a fair reading of this statement, together with subsection 2410(d), indicates a Congressional intent to prevent those who purchased property at the foreclosure sale of their own lien from making a profit at the expense of the taxpayer, and thus possibly at the expense of the Government as one of taxpayer’s creditors. By preventing a purchaser from making a profit on resale of underbid foreclosed property and then also collecting from the grantor for a deficiency, section 2410(d) protects the Government’s interest even if the Government does not bid at the foreclosure sale. However, there is no reasonable indication that Congress intended to go further and force the lienholder either to renounce any right to a deficiency be fore any foreclosure sale without knowing even if the Government intends to redeem or to forfeit any balance still owed to him. The precise language of section 2410 (d) (1), does not preclude the obligation of the grantors to the lienholders, Equity Mortgage, being “satisfied” in full by Equity Mortgage’s filing a waiver to any further recourse against the grantors at any reasonable point in time. In a state where no deficiency judgments are allowed, even the Internal Revenue Service agrees that the Government must pay the full amount of the grantor’s obligation to the lienholder in order to redeem. Temp.Treas.Reg. § 400.5-1 (e) (2) example 1 (T.D. 6944, filed 1-19-68), quoted in 5 PH Federal Taxes, para. 38830. When the lienholder waives any right to a deficiency from the grantor then it is in the same position as if the state law prohibited such judgments. As discussed above, neither the literal wording of the statute nor the legislative history indicates that the lienholder should not be allowed to elect such a waiver, if and when the Government elects to proceed with its right of" }, { "docid": "18207839", "title": "", "text": "which other states have chosen to meet, if at all, in their own different ways. Conceivably, if any states have been laggard in protecting debtors against underbidding, there may be a national interest in generalizing this form of protection; but, if so, the matter should be presented to Congress on that basis, and not as a casual incident of federal lien legislation. “While ' the Government perhaps should enjoy the same advantage that other junior lienors would have in those states with redemption laws, Congress should consider requiring, in other circumstances, that the redemption price cover the full amount owing to senior lienors, so that redemption will be availed of only to provide a surplus for the United States where the value of the property exceeds senior liens, and not to obtain a windfall for the Government. (Of course, if the Government does redeem for such full amount, the senior lienor’s right to a deficiency, whether or not reduced to judgment, should be either discharged or passed to the Government by subrogation.) If that suggestion is not acceptable, Congress should at least provide that the full amount of the indebtedness shall be included in the redemption price whenever the senior lienor, within a prescribed period after the sale, effectively relinquishes his right to a deficiency judgment or allows it to expire unexercised.” We do not share the learned author’s pessimism. We note that he did not review the specific legislative history on this point. Our review of this history convinces us that Congress intended to do what he thinks they should have done. The crux of the Government’s interpretation of section 2410(d) is based on the statement in Sen.Rep. 1708, supra, at p. 34— “Where the lien is fully satisfied, the purchaser is not to receive less than the amount due him at the time of sale. Where the lien attaches to other property, however, or where, after the sale, the purchaser still has the right to sue for the unpaid balance of the amount due him, the amount — [to be paid by the Government in redeeming the property" }, { "docid": "18207816", "title": "", "text": "or to assign such rights to the Government. Apparently it is the Government’s position that the lienholder who purchases the subject property at the foreclosure sale must either bid the full amount owed to him by the grantor or, prior to the foreclosure sale, waive any right to a deficiency judgment against the grantor in order to be entitled to full compensation when and if the Government elects to redeem under section 2410. The Government further contends that under the Code of Virginia, section 55-59(2), (5) and (13), the expenses incurred in the foreclosure sale were incurred by the grantor rather than Equity Mortgage. Since these expenses became liabilities of Mr. and Mrs. Loftus to Equity Mortgage, it is the Government’s view that they merely augmented the deficiency due Equity Mortgage and were not properly included in the sum required to be tendered by the Government. In support of its position, the Government cites Senate Report No. 1708, 89th Cong.2d Sess. 34 (1966), U.S.Code Cong. & Admin.News, p. 3722. The Government also contends that it need not include in its tender any payments by Equity Mortgage to Mutual Federal, the holder of the first deed of trust, made either prior to the foreclosure or those made in the interim between the foreclosure and the date of tender. Here, likewise, it is the Government’s position that these payments merely compounded what was owed by Mr. and Mrs. Loftus to Equity Mortgage. In disputing any right of subrogation, which Equity Mortgage might have because of these payments, the Government contends that Virginia law bars the right of Equity Mortgage to use subrogation to compete with the claim of a prior encumbrancer. Presumably the Government feels that, under the redemption statute, it should be accorded a new status prior to Equity Mortgage. Finally, with regard to these payments, it is the Government’s view that 28 U.S.C. § 2410(d) (3) contemplates only genuine maintenance expenses and not payments to a holder of a first deed of trust. In support of this final point, the Government cites Senate Report No. 1708, 89 Cong. 2d Sess." }, { "docid": "14764760", "title": "", "text": "trust in the total amount of $563.80, and between the date of tender and June 1, 1970, Equity made further payments on Mutual’s note in the amount of $1,656.20. The District Court invalidated the certificate of redemption on the grounds that the Government’s tender was insufficient in light of the payments made by Equity to Mutual, its expenses of recording its deed, and the principal balance remaining outstanding on its note. Notwithstanding the fact that taxpayer’s obligation to Equity was satisfied by the foreclosure sale only to the extent of the net proceeds thereof, the court concluded that the provisions of 28 U.S.C. § 2410(d)(1) required the tender of the full amount of the obligation secured by the lien where, as here, the purchaser (Equity) has stated its willingness (after this action was commenced) to waive its right to a deficiency judgment if the full amount were tendered. (Record references omitted.) II. The government’s right of redemption, which is not contested, was created by 26 U.S.C. § 7425(d). Section 7425(b) governs a sale of property on which the United States has or claims a lien, and § 7425(d) states that “[i]n the ease of a sale of real property to which subsection (b) applies to satisfy a lien prior to that of the United States, the Secretary . . . may redeem within the period of 120 days from the date of sale . The section states that the redemption price shall be the amount prescribed in 28 U.S.C. § 2410(d). The pertinent part of § 2410(d) reads: (d) In any case in which the United States redeems real property under section 7425 of the Internal Revenue Code of 1954, the amount to be paid for such property shall be the sum of— (1) the actual amount paid by the purchaser at such sale (which, in the case of a purchaser who is the holder of the lien being foreclosed, shall include the amount of the obligation secured by such lien to the extent satisfied by reason of such sale), (2) interest on the amount paid (as determined under paragraph" }, { "docid": "14764759", "title": "", "text": "Equity’s payments to Mutual and certain foreclosure expenses) plus a five-percent “Trustee’s commission.” The offer was not accepted. Instead, on July 16, 1969, within the 120-day period allowed for the exercise of the Government’s right of redemption under Section 7425 of the Internal Revenue Code and 28 U.S.C. § 2410, the Government tendered Equity a check in the amount of $1,019.27 (reflecting Equity’s purchase price plus statutory interest as provided for under 28 U. S.C. § 2410(d) ) for the purpose of exercising its right of redemption. Although Equity declined to accept the tender, the District Director of Internal Revenue caused a certificate of redemption to be recorded in the Circuit Court of the City of Virginia Beach on July 18, 1969. On April 15, 1970, Equity recorded its deed at a cost of $103.50 based on an estimated fair market value for the property of $32,500. Between the date of the foreclosure sale and the date of the tender, Equity made additional payments to Mutual on the note secured by the first deed of trust in the total amount of $563.80, and between the date of tender and June 1, 1970, Equity made further payments on Mutual’s note in the amount of $1,656.20. The District Court invalidated the certificate of redemption on the grounds that the Government’s tender was insufficient in light of the payments made by Equity to Mutual, its expenses of recording its deed, and the principal balance remaining outstanding on its note. Notwithstanding the fact that taxpayer’s obligation to Equity was satisfied by the foreclosure sale only to the extent of the net proceeds thereof, the court concluded that the provisions of 28 U.S.C. § 2410(d)(1) required the tender of the full amount of the obligation secured by the lien where, as here, the purchaser (Equity) has stated its willingness (after this action was commenced) to waive its right to a deficiency judgment if the full amount were tendered. (Record references omitted.) II. The government’s right of redemption, which is not contested, was created by 26 U.S.C. § 7425(d). Section 7425(b) governs a sale of property" }, { "docid": "18207843", "title": "", "text": "redemption. There, we hold that where, as in the case at bar, the lienholder has agreed to assign any rights against the grantors to the Government, or to waive any right to a deficiency judgment against the grantors, then whether the lienholder takes such action before or after the foreclosure sale, the Government, in order to redeem the property purchased by this lienholder, must pay the lienholder the amount paid by the purchaser at the sale (with interest), plus the full balance still owing under the second deed of trust. Furthermore, because the lienholder should not have to make an unconditional anticipatory renunciation of his potential rights against the grantors, we hold that Equity Mortgage may condition its renunciation on the Government’s election to redeem with full payment as set forth in this opinion. Turning to the question of the payments by Equity Mortgage to Mutual Federal, we hold that although section 2410(d) makes no explicit provision for reimbursement for these payments, the same interpretation of Congressional intent should apply to prevent a forfeiture. We also note that according to Plumb, supra at note 408, the administrative practice, at least in the Internal Revenue Service, is to allow credit for such payments. Furthermore, under the traditional equitable principles of either an equitable lien or subrogation, the lien-holder should be protected as far as payments to prevent foreclosure of a prior mortgage are concerned. See Sutherland, Statutory Construction (Horack, ed.) § 6001-6007 (1943). Keel v. Vinyard, 48 Idaho 49, 279 P. 420 (1929) provides some support for the creation of an equitable lien in favor of Equity Mortgage for the payments to Mutual Federal. There the plaintiff, the holder of a third deed of trust, acquired property at a foreclosure sale subject to a right of redemption in the grantor. In order to preserve his interest in the property, plaintiff was compelled to pay the past due installments on the prior mortgages or face foreclosure by the prior deeds of trust holders. The state redemption statutes in computing the amount necessary to redeem did not contemplate the inclusion of payments of" }, { "docid": "18207826", "title": "", "text": "MacGarvie, 41 N.J.Super. 151, 124 A.2d 345 (1956), modified and affirmed, 22 N.J. 539, 126 A.2d 880 (1956), the court held that one who repurchases must pay the full amount due the foreclosing mortgagee even if the Government was the one redeeming. In a court of equity the Government must do equity as well. At p. 348 of 124 A.2d the court concluded: “I don’t think Congress meant any such inequitable and unconscionable thing as to allow the Government, at any time up to a year after the sale, to come in, offer what was paid at the foreclosure sale, and immediately assume the position of senior lienholder, pushing every one else into the background and thus, by wiping out the foreclosure bid, gain an advantage which it could never get at the foreclosure sale, or before it, by redeeming without paying the amount of the mortgage, the interest, the fees, and everything else that might be due to the senior lienor.” In United States v. Brosnan, 264 F.2d 762 (3rd Cir., 1959), aff’d on other grounds, 363 U.S. 237, 80 S.Ct. 1108, 4 L.Ed.2d 1192 (1960), the court held that a tender by the Government of the amount bid at the foreclosure sale was insufficient and that the mortgage must be paid in full. The Federal Tax Lien Act of 1966, H.R. 11256, 89th Cong. 2d Sess. (1966), was the first comprehensive revision and modernization of the tax lien laws. It was introduced in the House and referred to the Committee on Ways and Means along with an identical bill, H.R. 11290. In Hearings on H.R. 11256 and H.R. 11290 before the House Committee on Ways and Means, 89th Cong., 2d Sess. 103 (1966), [hereinafter Hearings], Mr. Surrey, Assistant Secretary of the Treasury, stated that the new subsection 2410(d), prescribing the amount that the United States was to pay in order to redeem property from a purchaser at a foreclosure sale, provided a formula of uniform application in all jurisdictions, rather than being based on the law of each different state. Mr. Williams, Chairman of the Special Committee on" }, { "docid": "14764764", "title": "", "text": "and B forecloses on the mortgage which has an outstanding obligation in the amount of $100,000. At the foreclosure sale, B bids $50,000 and obtains title to Blackaere as a result of the sale. At the time of the foreclosure sale, Blackaere has a fair market value of $75,000. Under the laws of X State, the mortgage obligcution is fully satisfied as a result of the foreclosure sale and the mortgagee cannot obtain a deficiency judgment. Under subparagraph (l)(i) of this paragraph, the district director must pay $100,000 in order to redeem Black-acre. Example (2). Assume the same facts as in example (1), except that under the laws of X State, the fair market value of the property foreclosed is the amount of the obligation legally satisfied as a result of the foreclosure sale, and in a case in which the amount of the obligation exceeds the amount of the fair market value of the property, the mortgagee has the right to a judgment for the deficiency computed as the difference between the obligation and the fair market value of the property. In such a case the district director must, under subpara-graph (1) (i) of this paragraph, pay $75,000 in order to redeem Blackacre, whether or not B seeks a judgment for the deficiency. Example (3). Assume the same facts as in example (1), except that under the laws of X State, the amount bid is the amount of the obligation legally satisfied as a result of the foreclosure sale, and in the case in which the amount of the obligation exceeds the amount bid, the mortgagee has the right to a judgment for the deficiency computed as the difference between the amount of the obligation and the amount bid. In such a case, the district director must, under subpara-graph (1) (i) of this paragraph, pay $50,000 in order to redeem Blackacre, whether or not B seeks a judgment for the deficiency. (Emphasis added.) It will be seen that Virginia is a state within the third example and the redemption price, before adjustments required by other provisions of law, is" }, { "docid": "14764767", "title": "", "text": "to the extent that the lien is satisfied by the sale. Where the lien is fully satisfied, the purchaser is not to receive less than the amount due him at the time of the sale. Where the lien attaches to other property, however, or where, after the sale, \"the purchaser still has the right to sue for the unpaid balance of the amount due him, the amount paid does not include this unpaid balance. S.Rept.No.1708, 89th Cong., 2d Sess.; 1966 [3] U.S.Code Cong. & Admin. News, at 3756. We think the expression of legislative intent clear, concise and specific. Certainly it was intended to change the case law of such authorities as First National Bank & Trust Co. v. MacGarvie, 22 N.J. 539, 126 A.2d 880 (1956), affirming 41 N.J.Super. 151, 124 A.2d 345 (1956) and United States v. Brosnan, 264 F.2d 762 (3 Cir. 1956), aff’d, 363 U.S. 237, 80 S.Ct. 1108, 4 L.Ed.2d 1192 (1960); and it was intended as a uniform federal rule to fix the computation of redemption price where federal statutes were theretofore silent. We do not think that literal application can be avoided on the ground of legislative overkill (323 F.Supp. at 154), or the subsequent unilateral act of the lienor after a title dispute and litigation have ensued (323 F.Supp. at 155). We hold that § 2410(d)(1) required the government to tender Equity only the amount paid by Equity at the foreclosure sale in order for the government to exercise its right of redemption. By the terms of § 2410 (d)'(2), this amount bore interest at 6% per annum from the date of sale. III. As previously stated, Equity made payments to Mutual prior to the Equity foreclosure in order to forestall foreclosure by Mutual. Equity has made additional payments to Mutual since foreclosure, again to prevent Mutual from foreclosing its superior lien with the possibility of extinguishing Equity’s interest, and one of these was made after foreclosure and prior to redemption. We think that Equity should be reimbursed for payments both before and after foreclosure, less any adjustments required to be made" }, { "docid": "14764755", "title": "", "text": "WINTER, Circuit Judge: When Equity Mortgage Corporation (Equity) foreclosed its second deed of trust on property owned by Mr. and Mrs. Harold Loftus in Virginia Beach, Virginia, it purchased the property for $1,000, subject to a first deed of trust to Mutual Federal Savings and Loan Association (Mutual) on which the principal balance was $17,956.33. At the time, the principal balance on the second deed of trust was $3,210.28. Additionally, before foreclosure, Equity had made payments to Mutual of $1,796.40 on account of the debt in order to avoid a foreclosure by Mutual and extinguishment of Equity’s second lien. Equity’s foreclosure extinguished a federal tax lien for unpaid income taxes which was junior to Equity’s second deed of trust. Within the time prescribed by statute, the government purported to exercise its right of redemption under 28 U.S.C. § 2410(d) and 26 U.S.C. § 7425 (d), and tendered Equity $1,019.27— Equity’s purchase price at the foreclosure sale, plus statutory interest — but Equity declined the tender. In this suit to quiet title, the district court, construing 28 U.S.C. § 2410(d) (1), held that the government could have redeemed only by paying Equity the full amount of its lien. We disagree. We hold that under the statute the government may redeem by paying Equity the amount the latter paid at foreclosure together with the expenses necessarily incurred in connection with such property which we hold included payments to Mutual prior to Equity’s foreclosure as well as after foreclosure and prior to redemption. Additionally, on general principles of equity, we hold that the government must pay Equity subsequent amounts it paid to Mutual while this litigation was pending. Finally, we reject Equity’s claim that the statute fixing the redemption price is unconstitutional. We reverse and remand for further proceedings in accordance with the views set forth herein. I. The facts are not disputed, and we adopt the statement set forth in the government’s brief: At all pertinent times prior to March 21, 1969, taxpayers, Harold and Jeanne Loftus, were the owners of certain real property located in Virginia Beach, Virginia. The property was" }, { "docid": "18207815", "title": "", "text": "sue for a deficiency judgment on the unpaid balance of their original note, then the Government only need tender $1,000 actually bid by Equity Mortgage at the foreclosure sale, plus interest. At a hearing on the motions for summary judgment, attorneys for Equity Mortgage offered to waive any right to a deficiency judgment against Mr. and Mrs. Loftus if the Government would pay Equity Mortgage the full amount owed to it by the Loftuses on their note. The Government, however, has held to the position that its original tender was sufficient. The Government interprets 28 U.S.C. § 2410(d) (1) to say that when, after a foreclosure sale, the purchaser whose lien is being foreclosed still has the right to sue the grantor for the unpaid balance of the amount due him, then the Government need not tender more than the amount paid at the foreclosure sale, even if the grantor is “judgment-proof” and even if the purchaser is either willing to waive all rights against the grantor for any deficiency because of such a lien or to assign such rights to the Government. Apparently it is the Government’s position that the lienholder who purchases the subject property at the foreclosure sale must either bid the full amount owed to him by the grantor or, prior to the foreclosure sale, waive any right to a deficiency judgment against the grantor in order to be entitled to full compensation when and if the Government elects to redeem under section 2410. The Government further contends that under the Code of Virginia, section 55-59(2), (5) and (13), the expenses incurred in the foreclosure sale were incurred by the grantor rather than Equity Mortgage. Since these expenses became liabilities of Mr. and Mrs. Loftus to Equity Mortgage, it is the Government’s view that they merely augmented the deficiency due Equity Mortgage and were not properly included in the sum required to be tendered by the Government. In support of its position, the Government cites Senate Report No. 1708, 89th Cong.2d Sess. 34 (1966), U.S.Code Cong. & Admin.News, p. 3722. The Government also contends that it" }, { "docid": "18207814", "title": "", "text": "property shall be the sum of— (1) the actual amount paid by the purchaser at such sale (which, in the case of a purchaser who is the holder of the lien being foreclosed, shall include the amount of the obligation secured by such lien to the extent satisfied by reason of such sale), (2) interest on the amount paid (as determined under paragraph (1)) at 6 percent per annum from the date of such sale, and (3) the amount (if any) equal to to the excess of (A) the expenses necessarily incurred in connection with such property, over (B) the income from such property plus (to the extent such property is used by the purchaser) a reasonable rental value of such property.” It is the position of the Government that, under Watkins v. Dupuy, 87 Va. 87, 12 S.E. 294 (1890), Equity Mortgage, after the foreclosure, had the right to sue Mr. and Mrs. Loftus for the deficiency still owed on the note. According to the Government, since Equity Mortgage still had the right to sue for a deficiency judgment on the unpaid balance of their original note, then the Government only need tender $1,000 actually bid by Equity Mortgage at the foreclosure sale, plus interest. At a hearing on the motions for summary judgment, attorneys for Equity Mortgage offered to waive any right to a deficiency judgment against Mr. and Mrs. Loftus if the Government would pay Equity Mortgage the full amount owed to it by the Loftuses on their note. The Government, however, has held to the position that its original tender was sufficient. The Government interprets 28 U.S.C. § 2410(d) (1) to say that when, after a foreclosure sale, the purchaser whose lien is being foreclosed still has the right to sue the grantor for the unpaid balance of the amount due him, then the Government need not tender more than the amount paid at the foreclosure sale, even if the grantor is “judgment-proof” and even if the purchaser is either willing to waive all rights against the grantor for any deficiency because of such a lien" }, { "docid": "21924988", "title": "", "text": "the property. Appellant contends that Section 7403(c) (supra note 2) prohibits the United States from bidding except when it holds a first lien and then it may only bid in a sum not exceeding the amount of such senior lien plus the expenses of sale. Since the Government is concededly a junior lienor here, the argument runs, the judgment permitting it to purchase is erroneous and reversible. We cannot accept this construction of the statute. The last sentence of Section 7403(c), which is at issue here, was added in 1966 (Act of Nov. 2, 1966, Pub.L.No.89-719, Tit. I, § 107(b), 80 Stat. 1140), and no case construing it has been cited to us or discovered in our research. The purpose of the amendment is made clear, however, by the report of the Senate Committee. Where property is sold at a tax lien foreclosure sale, the Internal Revenue Code contains no specific authority authorizing the Federal Government to bid at these sales where it believes that less than full consideration is being offered for the property. Such authority is contained elsewhere, however, in the public statutes (see sec. 195 of title 31 of the United States Code). It is desirable for the Federal Government to bid in property to prevent its sale at distress prices in order to assure that the Government receives the full value of the property sold or the amount of the Government’s tax claim, as well as to protect the interests of the delinquent taxpayer whose property is being sold. For the reason indicated above, the bill codifies the rule that where the Government brings an action to enforce a tax lien, the Government can bid on the property where the Government holds a first lien. The amount which it may bid under the bill is limited to the amount of its lien, plus selling expenses. Whether or not the Government exercises this authority to bid within the limit set forth in the bill is a matter within the discretion of the Treasury Department. (S.Rep.No.1708, 89th Cong., 2d Sess., in 1966 U.S.Cong. & Ad.News 3722, 3747). It" }, { "docid": "18207836", "title": "", "text": "due him, the amount paid does not include this unpaid balance. “In addition to the price paid by the purchaser plus interest, in order to redeem property, the Government must pay, as part of the redemption price, the excess, if there is any, of any expenses incurred after the foreclosure sale in maintaining the property over the income from the property during this period. Where the property is not rented out but is used by the purchaser, the income includes the reasonable rental value of the property.” It is significant that the legislative history of H.R. 11256, as set forth above, indicates an affirmative intent on the part of Congress to provide an equitable balance between the Government and the taxpayer. No member of Congress indicated a contrary intent. It is also significant that there is no indication in the legislative history of any intent to change the law as to what the Government must do upon redemption as set forth in First National Bank and Trust Company v. MacGarvie, supra, and United States v. Brosnan, supra. W. T. Plumb, Jr., Chairman of the ABA Committee on Federal Tax Liens and Collection Proceedings and author of Federal Liens and Priorities Agenda for The Next Decade, 77 Yale L.J. 1104, (1968), thinks that the new price formula may force mortgagees to bid at the market value or the amount of their lien even though “Low bidding would ordinarily reduce commissions and conveyance taxes, and would avoid artificially creating taxable interest income or profit in what is essentially a salvage operation.” He continues at p. 1177 that “Now, mortgagees and other senior lienors (including those making nonjudicial sales, which were not affected before) must review and perhaps revise their bidding practices in the light of the new threat. The existence of even a worthless right to a deficiency judgment (for which the mortgagee may choose not to apply) may now entitle the Government to obtain without fully satisfying the senior debt, the property which represents the mortgagee’s only hope of recouping his investment, at least if he does not in some legally" }, { "docid": "14764765", "title": "", "text": "the fair market value of the property. In such a case the district director must, under subpara-graph (1) (i) of this paragraph, pay $75,000 in order to redeem Blackacre, whether or not B seeks a judgment for the deficiency. Example (3). Assume the same facts as in example (1), except that under the laws of X State, the amount bid is the amount of the obligation legally satisfied as a result of the foreclosure sale, and in the case in which the amount of the obligation exceeds the amount bid, the mortgagee has the right to a judgment for the deficiency computed as the difference between the amount of the obligation and the amount bid. In such a case, the district director must, under subpara-graph (1) (i) of this paragraph, pay $50,000 in order to redeem Blackacre, whether or not B seeks a judgment for the deficiency. (Emphasis added.) It will be seen that Virginia is a state within the third example and the redemption price, before adjustments required by other provisions of law, is the amount bid at foreclosure irrespective of whether Equity has obtained a deficiency judgment for the balance of its unpaid debt. Notwithstanding the contrary views of the district court, Equity Mortgage Corporation v. Loftus, 323 F.Supp. 144 (E.D.Va.1970), we think that the legislative history of § 2410(d) indicates that the statute means literally what it says. The definitive statement of purpose and intent is contained in S.Rept.No.1708, 89th Cong., 2d Sess., at 34 (1966): The bill also provides a formula for determining the price the Government must pay where it redeems property sold in proceedings where the Government is joined as a party (under this section), and where it is sold in foreclosures other than plenary judicial proceedings. The redemption price is to be the amount paid by the purchaser at the foreclosure sale plus interest at the statutory rate (6 percent) from the date of sale. Where the purchaser at the sale is the person whose lien is being foreclosed, the amount paid by him includes the amount of the debt underlying his lien" }, { "docid": "14764763", "title": "", "text": "the purchase price ($1,000), less the expenses of sale ($198.05), and that Equity would be entitled to a deficiency judgment against Mr. and Mrs. Loftus for the remaining unpaid balance. But this is not necessarily true in other states and, hence, § 2410(d)(1) may have a different effect in them in prescribing what the government must pay if it exercises its right to redeem. That there are these differences in state law and that therefore § 2410(d) (1) prescribes a shifting quantum of redemption price depending upon the state in which it is applied are fully recognized in the examples to 26 C.F.R. § 400.5-l(c) (2), the temporary regulations to the Federal Tax Lien Act of 1966, and, specifically, to subparagraph (1) (i), which is a restatement of § 2410 (d)(1). They follow: Example (1). A, a delinquent taxpayer, owns Blackaere located in X State upon which B holds a mortgage. After the mortgage is properly recorded, a notice of tax lien is filed which is applicable to Blackaere. Subsequently, A defaults on the mortgage and B forecloses on the mortgage which has an outstanding obligation in the amount of $100,000. At the foreclosure sale, B bids $50,000 and obtains title to Blackaere as a result of the sale. At the time of the foreclosure sale, Blackaere has a fair market value of $75,000. Under the laws of X State, the mortgage obligcution is fully satisfied as a result of the foreclosure sale and the mortgagee cannot obtain a deficiency judgment. Under subparagraph (l)(i) of this paragraph, the district director must pay $100,000 in order to redeem Black-acre. Example (2). Assume the same facts as in example (1), except that under the laws of X State, the fair market value of the property foreclosed is the amount of the obligation legally satisfied as a result of the foreclosure sale, and in a case in which the amount of the obligation exceeds the amount of the fair market value of the property, the mortgagee has the right to a judgment for the deficiency computed as the difference between the obligation and" }, { "docid": "18207840", "title": "", "text": "is not acceptable, Congress should at least provide that the full amount of the indebtedness shall be included in the redemption price whenever the senior lienor, within a prescribed period after the sale, effectively relinquishes his right to a deficiency judgment or allows it to expire unexercised.” We do not share the learned author’s pessimism. We note that he did not review the specific legislative history on this point. Our review of this history convinces us that Congress intended to do what he thinks they should have done. The crux of the Government’s interpretation of section 2410(d) is based on the statement in Sen.Rep. 1708, supra, at p. 34— “Where the lien is fully satisfied, the purchaser is not to receive less than the amount due him at the time of sale. Where the lien attaches to other property, however, or where, after the sale, the purchaser still has the right to sue for the unpaid balance of the amount due him, the amount — [to be paid by the Government in redeeming the property purchased at foreclosure sale] does not include this unpaid balance [still due the purchaser from the person whose property is foreclosed.] ” Because of the importance placed on this statement by the Government, it requires close examination. In light of the legislative history cited supra, we think a fair reading of this statement, together with subsection 2410(d), indicates a Congressional intent to prevent those who purchased property at the foreclosure sale of their own lien from making a profit at the expense of the taxpayer, and thus possibly at the expense of the Government as one of taxpayer’s creditors. By preventing a purchaser from making a profit on resale of underbid foreclosed property and then also collecting from the grantor for a deficiency, section 2410(d) protects the Government’s interest even if the Government does not bid at the foreclosure sale. However, there is no reasonable indication that Congress intended to go further and force the lienholder either to renounce any right to a deficiency be fore any foreclosure sale without knowing even if the Government" }, { "docid": "14764766", "title": "", "text": "the amount bid at foreclosure irrespective of whether Equity has obtained a deficiency judgment for the balance of its unpaid debt. Notwithstanding the contrary views of the district court, Equity Mortgage Corporation v. Loftus, 323 F.Supp. 144 (E.D.Va.1970), we think that the legislative history of § 2410(d) indicates that the statute means literally what it says. The definitive statement of purpose and intent is contained in S.Rept.No.1708, 89th Cong., 2d Sess., at 34 (1966): The bill also provides a formula for determining the price the Government must pay where it redeems property sold in proceedings where the Government is joined as a party (under this section), and where it is sold in foreclosures other than plenary judicial proceedings. The redemption price is to be the amount paid by the purchaser at the foreclosure sale plus interest at the statutory rate (6 percent) from the date of sale. Where the purchaser at the sale is the person whose lien is being foreclosed, the amount paid by him includes the amount of the debt underlying his lien to the extent that the lien is satisfied by the sale. Where the lien is fully satisfied, the purchaser is not to receive less than the amount due him at the time of the sale. Where the lien attaches to other property, however, or where, after the sale, \"the purchaser still has the right to sue for the unpaid balance of the amount due him, the amount paid does not include this unpaid balance. S.Rept.No.1708, 89th Cong., 2d Sess.; 1966 [3] U.S.Code Cong. & Admin. News, at 3756. We think the expression of legislative intent clear, concise and specific. Certainly it was intended to change the case law of such authorities as First National Bank & Trust Co. v. MacGarvie, 22 N.J. 539, 126 A.2d 880 (1956), affirming 41 N.J.Super. 151, 124 A.2d 345 (1956) and United States v. Brosnan, 264 F.2d 762 (3 Cir. 1956), aff’d, 363 U.S. 237, 80 S.Ct. 1108, 4 L.Ed.2d 1192 (1960); and it was intended as a uniform federal rule to fix the computation of redemption price where federal" } ]

[ { "docid": "10544163", "title": "", "text": "fiduciary duty, and a claim of ignorance of the duty is an inadequate defense to a breach of fiduciary duty. Codias, 78 B.R. 344. The debtors disregarded their status as trustees for the dissolved corporation. The Court finds that the debtors’ acts are sufficient to satisfy the element under 11 U.S.C. § 523(a)(4) that a fraud or defalcation be committed by a debtor while acting in a fiduciary capacity. The final element required in an 11 U.S.C. § 523(a)(4) action is that the fiduciary duty be in existence prior to and independent of the debtors’ alleged misconduct. Murphy & Robinson Investment Co. v. Cross (In re Cross), 666 F.2d 873 (5th Cir.1982). Generally when a case involves a statutory trust, prior to the trust coming into existence, some type of debtor/creditor relationship has already been established between the parties. In the instant action Arvida was the creditor of Waterway. This relationship qualifies the creditor to be a part of the class of beneficiaries under the trust. If no trust ever comes into being, the creditor is simply a claimant if the debtor subsequently files bankruptcy. Clark & Rapuano, Inc. v. Morris Ketchum Jr. and Assoc. (In re Morris Ketchum Jr. and Assoc.), 409 F.Supp. 743, 746 (S.D.N.Y.1975). However, upon the creation of a trust pursuant to state statute, another obligation, in addition to and independent of the existing debt is created. Carey Lumber, 615 F.2d 370. For example, in Carey Lumber, an obligation was created pursuant to a New York state statute when a contractor received funds from a third party which the contractor “was legally required to hold in trust for persons holding, or who later would hold valid lienable claims.” The contractor in Carey Lumber breached the fiduciary duty imposed by the statute when he misappropriated the funds intended for the beneficiaries of the trust. 615 F.2d at 375. The debt considered in Carey Lumber for dischargeability purposes was created by the contractor’s misappropriation of construction funds. 615 F.2d at 375. Other courts have also addressed the application of this element. The Johnson court, interpreting 11 U.S.C. §" } ]

[ { "docid": "18372380", "title": "", "text": "the Douglas County Nebraska judgment. The complaint alleged that the judgment arose out of fraud and legal malpractice committed by Rickabaugh and prayed that the judgment debt be held nondischargeable under § 523(a). Complaint, ¶¶ 6, 21. On April 19, 2006, plaintiffs filed a motion for summary judgment on the basis of issue preclusion. In the brief in support of their motion for summary judgment, plaintiffs identified two theories of nondis-chargeability, fraud under § 523(a)(2)(A) and fraud or defalcation while acting in a fiduciary capacity under § 523(a)(4). The motion was denied. Discussion Plaintiffs bear the burden of proving by a preponderance of the evidence that their debt should be held non-dischargeable. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The exceptions to discharge under 11 U.S.C. § 523(a) must be strictly construed in favor of the debtor. Geiger v. Kawaauhau (In re Geiger), 113 F.3d 848, 853 (8th Cir.1997), aff'd, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998); Barclays American/Business Credit, Inc. v. Long (In re Long), 774 F.2d 875, 879 (8th Cir.1985). The court first addresses plaintiffs’ claim under § 523(a)(4), that Ricka-baugh’s debt is for fraud or defalcation while acting in a fiduciary capacity. Whether a debtor has acted in a fiduciary capacity within the meaning of § 523(a)(4) is a matter of federal law. Tudor Oaks Ltd. Partnership v. Cochrane (In re Cochrane), 124 F.3d 978, 984 (8th Cir.1997). “The fiduciary relationship must be one arising from an express or technical trust that was imposed before and without reference to the wrongdoing that caused the debt.” Id. The fiduciary status necessary for purposes of § 523(a)(4) is “more narrowly defined than that under the general common law [and] the broad, general definition of fiduciary — a relationship involving confidence, trust and good faith — is inapplicable.” Jafarpour v. Shahrokhi (In re Shahrokhi), 266 B.R. 702, 707 (8th Cir. BAP 2001); see also 4 Collier on Bankruptcy ¶ 523.10[l][d] (15th ed. rev.2006) (discussing narrow construction of “fiduciary” under § 523(a)(4) compared with state law). Plaintiffs argue that Rickabaugh’s conduct falls" }, { "docid": "4637275", "title": "", "text": "The corresponding compromise created an exception from discharge for debts arising from fraud or defalcation while acting as a fiduciary, and for embezzlement or larceny at any time. The test to determine whether the debt created by a fiduciary falls within the exception to discharge of Section 523(a)(4) has two steps. In re Wright, 87 B.R. 1011, 1017 (Bankr.D.S.D.1988). First, a fiduciary relationship must exist prior to the particular transaction from which the debt arose. See, e.g., In re Cross, 666 F.2d 873, 879 (5th Cir. Unit B 1982); In re Menendez, 107 B.R. 789, 793 (Bankr.S.D.Fla.1989); In re Valdes, 98 B.R. 78, 80 (Bankr.M.D.Fla.1989). Second, some type of fraud or defalcation must occur during the fiduciary relationship. i. Existence of a Fiduciary Duty The savings and loan crisis is well known throughout the country at this point in time. The state and federal governments will bear the costs of the losses, as well as the American people in general. An exhor-bitant amount of money will be needed in order to restore the stability in the banking and saving and loan industry. The mismanagement and self-dealing engaged in by many of the officers and directors of these failed institutions directly contributed to their failure. In 1990, Congress passed the Crime Control Act. Contained within the act, Congress provided for an amendment to the Bankruptcy Code which would affect treatment of the debts incurred by these institution directors. Section 523 was amended through the addition of subsection (e), which provides that “any institution-affiliated party of a depository institution or insured credit union shall be considered to be acting in a fiduciary capacity with respect to the purposes of subsection (a)(4) or (11).” (emphasis added) 11 U.S.C. § 523(e). Section 101(33)(A) defines the term “institution-affiliated party” as that given in section 3(u) of the Federal Deposit Insurance Act. 12 U.S.C. § 1813(u). Section 3(u) provides that the term means “... any director, officer, employee, or controlling stockholder (other than a bank holding company) of, or agent for, an insured depository institution.” (emphasis added) 12 U.S.C. § 1813(u). Section 101(35)(A) defines “insured depository" }, { "docid": "4637274", "title": "", "text": "been no real loss to SCSB. In fact, SCSB’s economic outlook could very well have improved. However, as it turned out, the actions undertaken by the debtor caused injury to SCSB and, although suspect in their own rights, amounted to mere reckless disregard. Conduct which reaches the standard of reckless disregard, although not in and of itself sufficient to determine nondischarge-ability under section 523(a)(6), can be used as evidence in favor of the second element of maliciousness. Therefore, because the evidence presented is insufficient to prove both elements of nondischargeability, the debts do not fall under section 523(a)(6). c. Section 523(a)(4) Section 523(a)(4) allows for an exemption from discharge where the individual debt arises from “fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” This exception constituted the combination of the proposed House Bill which would have excepted a debt for embezzlement and larceny, and the Senate version, which excepted a debt for “fraud while acting in a fiduciary capacity, defalcation, embezzlement or misappropriation.” House Bill H.R. 8200; Senate Bill S. 2266. The corresponding compromise created an exception from discharge for debts arising from fraud or defalcation while acting as a fiduciary, and for embezzlement or larceny at any time. The test to determine whether the debt created by a fiduciary falls within the exception to discharge of Section 523(a)(4) has two steps. In re Wright, 87 B.R. 1011, 1017 (Bankr.D.S.D.1988). First, a fiduciary relationship must exist prior to the particular transaction from which the debt arose. See, e.g., In re Cross, 666 F.2d 873, 879 (5th Cir. Unit B 1982); In re Menendez, 107 B.R. 789, 793 (Bankr.S.D.Fla.1989); In re Valdes, 98 B.R. 78, 80 (Bankr.M.D.Fla.1989). Second, some type of fraud or defalcation must occur during the fiduciary relationship. i. Existence of a Fiduciary Duty The savings and loan crisis is well known throughout the country at this point in time. The state and federal governments will bear the costs of the losses, as well as the American people in general. An exhor-bitant amount of money will be needed in order to restore the stability in" }, { "docid": "12287681", "title": "", "text": "Treasurer/Secretary of Maxwell. Debtor believed the $5000.00 price was reasonable for the sale. Debtor was at all relevant times a director and officer of Maxwell. This court is asked to determine whether or not the debt owed by Debtor to Plaintiff is nondischargeable under 11 U.S.C. § 523(a)(4) and (a)(6). Section 523(a)(4) states, “[a] discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt — (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” Section 523(a)(4) deals with fraud or defalcation while acting in a fiduciary capacity and embezzlement or larceny while not acting in a fiduciary capacity. Collier on Bankruptcy, 15th Ed.Rev. ¶ 523.10[l][c] at 523-72; accord, Reiter v. Napoli (In re Napoli), 82 B.R. 378, 381 (Bankr.E.D.Pa.1988). Under the first element, the definition of “fiduciary” for purposes of section 523(a)(4) is a question of federal law. See Tudor Oaks Ltd. Partnership v. Cochrane (In re Cochrane), 124 F.3d 978, 984 (8th Cir.1997), cert. denied, 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998); Spinoso v. Heilman (In re Heilman), 241 B.R. 137, 155 (Bankr.D.Md.1999). The term is limited to instances involving express or technical trusts which were “imposed before and without reference to the wrongdoing that caused the debt.” Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1185 (9th Cir.1996). In other words, to disqualify a debt from discharge under section 523(a)(4), the fiduciary duty must have existed prior to the transaction from which the debt arose and the debt must have arisen as a result of the fiduciary acting in that capacity. Lewis, 97 F.3d at 1185. With respect to the provision’s second element, the term “defalcation” is not defined in the Bankruptcy Code. However, in Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510 (2nd Cir.1937), the court concluded that “when a fiduciary takes money upon a conditional authority which may be revoked and knows at the time it may, he is guilty of a ‘defalcation’ though it may not be ‘fraud’ or an ‘embezzlement,’ or" }, { "docid": "20605972", "title": "", "text": "dischargeable as a matter of law, unless discharge is barred by a different subsection of § 523. B. 11 U.S.C. § 523(a)(4) The Defendant also asserted at trial that her claim was nondischargeable pursuant to § 523(a)(4) of the Bankruptcy Code. Section 523(a)(4) provides, in pertinent part: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; 11 U.S.C. § 523(a)(4). The phrase “debt for” means “debt arising from” or “debt on account of.” Cohen v. de la Cruz, 523 U.S. 213, 220-21, 118 S.Ct. 1212, 1217, 140 L.Ed.2d 341 (1998). Accordingly, there are three separate types of debts rendered nondis-chargeable under § 523(a)(4): (1) debts resulting from fraud or defalcation while acting in a fiduciary capacity; (2) debts resulting from embezzlement; and (3) debts resulting from larceny. As the Defendant did not specify which subpart of § 523(a)(4) she was traveling under, the Court will address all three. 1. Fraud or Defalcation While Acting in a Fiduciary Capacity Determining whether a debtor committed fraud or defalcation while acting in a fiduciary capacity is a two-step process. In re Beveridge, 416 B.R. 552, 570 (Bankr.N.D.Tex.2009) (citing Miller, 156 F.3d at 602). First, it must be shown that the requisite fiduciary relationship existed prior to the particular transaction from which the debt arose. See, e.g., In re Cross, 666 F.2d 873, 879 (5th Cir. Unit B 1982); In re Menendez, 107 B.R. 789, 793 (Bankr.S.D.Fla.1989); In re Valdes, 98 B.R. 78, 80 (Bankr.M.D.Fla.1989). Second, some type of fraud or defalcation must have occurred during the fiduciary relationship. In re Chavez, 140 B.R. 413, 422 (Bankr.W.D.Tex.1992). Because the Court finds that no fiduciary relationship existed under § 523(a)(4), the Court never reaches the second step in the analysis. In this context, the existence of a fiduciary relationship is a question of federal law. FNFS, Ltd. v. Harwood (In re Harwood), 637 F.3d 615, 620 (5th Cir.2011). For purposes of § 523(a)(4), the term “fiduciary” is" }, { "docid": "1255919", "title": "", "text": "or 1328(b) of this title does not discharge an individual debtor from any debt- (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. This section governs fraud or defalcation while acting in a fiduciary capacity, and embezzlement or larceny while not acting in a fiduciary capacity. In re Salamone, 78 B.R. 74, 76 (Bankr.E.D.Pa.1987). This provision of the Bankruptcy Code, and the others that also deal with debt discharge-ability, are to be construed liberally in favor of the debtor and applied strictly against the creditor, so as to effectuate the “fresh start” policy concern of bankruptcy. In re Belfry, 862 F.2d 661 (8th Cir.1988); In re Kalra, 95 B.R. 28 (Bankr.E.D.Pa. 1989); In re Borbidge, 90 B.R. 728, 734 (Bankr.E.D.Pa.1988). The existence of a fiduciary relationship must be proven by evidence that is clear, precise and unambiguous. In re James, 94 B.R. 350, 352 (Bankr.E.D.Pa. 1988); In re Borbidge, 90 B.R. at 733. This fiduciary relationship is a prerequisite to a determination of nondischargeability for fraud or defalcation under section 523(a)(4). In re Napoli, 82 B.R. 378, 381 (Bankr.E.D.Pa.1988). The qualification that the debtor be acting in a fiduciary capacity is limited to express or technical trusts, and cannot be extended to trusts ex maleficio, which may be imposed because of the very act of wrongdoing out of which the contested debt arose. Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934); In re Thornton, 544 F.2d 1005 (9th Cir.1976). As noted by a leading commentator, “the common place frauds of the ordinary debtor in disposing of his property so as to hinder, delay, or defraud his creditors” do not fall within § 523(a)(4). See 3 Collier on Bankruptcy 11523.14 at 523-98 (15th ed.1989). Thus, in order for § 523(a)(4) to disqualify a debt from discharge, the fiduciary relationship must have existed prior to or independent of the particular transaction from which the debt arose, and the debt must be due from the fiduciary acting in that capacity. See, e.g., Davis v. Aetna Acceptance Co.; In re Black, 787" }, { "docid": "19283511", "title": "", "text": "acting in a fiduciary capacity ...” To show nondischargeability under § 523(a)(4), a creditor must prove by a preponderance of the evidence that (1) the debt was caused by fraud or defalcation, and (2) there was a fiduciary relationship between the parties at the time the debt was created. In re Chavez, 140 B.R. 413, 422 (Bankr.W.D.Tex.1992). A fiduciary under § 523(a)(4) does not refer to any relationship involving confidence, trust, or good faith, rather § 523(a)(4) concerns a relationship arising out of a technical or express trust. In re Tran, 151 F.3d 339, 342 (5th Cir.1998); Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 79 L.Ed. 393 (1934). An express trust traditionally includes: (1) an explicit declaration of a trust, (2) a defined trust res, and (3) an intent to create a trust relationship. In re Chavez, 140 B.R. 413, 423 (Bankr.W.D.Tex.1992) citing In re Sax, 106 B.R. 534 (Bankr.N.D.Ill.1989). A technical trust may be imposed by law. In re Angelle, 610 F.2d 1335, 1341 (5th Cir.1980). The bank has not provided evidence of an express trust. The bank has not introduced a written trust agreement. The parties’ conduct does not establish a trust relationship. Neither the statutes nor the common law of Texas impose a trust relationship on the parties. Rather, the parties had a debtor-creditor relationship only. Accordingly, the bank has not established that the Grishams committed an act of defalcation while acting in a fiduciary capacity. This claim shall be dismissed. Section 523(a)(6) The bank alleges that it suffered an injury when the debtors willfully and maliciously sold the bank’s collateral without the bank’s consent and without paying the proceeds to the bank. Section 523(a)(6) of the Bankruptcy Code provides that a debt for “willful and malicious injury by the debtor to another ...” is not dischargeable. A willful injury requires “a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998). The creditor must establish “either an objective certainty of harm or" }, { "docid": "13175781", "title": "", "text": "of non-dischargeability, a creditor must show that his claim comes squarely within an exception enumerated in § 523(a). Kawaauhau v. Geiger, 523 U.S. 57, 62, 118 S.Ct. 974, 140 L.Ed.2d 90, (1998) (observing that “exceptions to discharge ‘should be confined to those plainly expressed’ ”) (quoting Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 59 L.Ed. 717 (1915)); McCrory v. Spigel (In re Spigel), 260 F.3d 27, 32 (1st Cir.2001). A narrow and strict construction of the exceptions to discharge against the creditor and in favor of the debtor is necessary to implement the Bankruptcy Code’s purpose of giving a debtor a new beginning. See Union Fire Ins. Co. of Pittsburgh, Pa. v. Bonnanzio (In re Bonnanzio), 91 F.3d 296, 300 (2d Cir.1996); Caspers v. Van Horne (In re Van Horne), 823 F.2d 1285, 1287 (8th Cir.1987); Murphy & Robinson Inv. Co. v. Cross (In re Cross), 666 F.2d 873, 879-80 (5th Cir.1982). Insofar as here relevant, to be excepted from discharge under § 523(a)(4), GUJ’s claim must have arisen from a “defalcation while acting in a fiduciary capacity”. A finding of nondischargeability under this provision requires a showing of (i) the existence of a fiduciary relationship between the debtor and the objecting creditor, and (ii) a defalcation committed by the debtor in the course of that relationship. See Antlers Roof-Truss and Builders Supply v. Storie (In re Storie), 216 B.R. 283, 286 (10th Cir. BAP 1997); Freer v. Beetler (In re Beetler), 368 B.R. 720, 725 (Bankr.C.D.Ill.2007). It follows that the issue posed by the Motion To Dismiss is whether GUJ’s complaint contains sufficient allegations, either direct or inferential, to plausibly support the conclusion that Yoshida committed a defalcation while acting in a fiduciary capacity within the meaning of § 523(a)(4). Accordingly, we will separately examine the “fiduciary” and “defalcation” elements of § 523(a)(4). IV. Yoshida was an employee/manager of GUJ’s computer store in New York City. As such, in the District Court Action, Yoshida was considered a fiduciary of GUJ. The complaint in this dischargeability adversary proceeding alleges Yoshida’s manager status and GUJ argues that in" }, { "docid": "3386736", "title": "", "text": "years; (b) all documents relating or referring to the business operations and activities of Meridian Development corporation. ... DISCUSSION A. Section 523(a) (k) Section 523(a)(4) provides that (а) a discharge under section 727 ... does not discharge an individual debtor from any debt— (4)for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. The burden is on the plaintiff to establish each of the elements of the statute by a preponderance of the evidence. In re Kressner, 164 B.R. 235 (Bankr.S.D.N.Y.1994); In re Stone, 90 B.R. 71 (Bankr.S.D.N.Y.), aff'd., 94 B.R. 298 (S.D.N.Y.1988), aff'd., 880 F.2d 1318 (2d Cir.1989); Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). To sustain a cause of action for fraud or defalcation under Section 523(a)(4), the plaintiff must first establish that the debtor acted while in a fiduciary capacity. In re Jacone, 156 B.R. 740 (Bankr.S.D.N.Y.1993). The issue of fiduciary status within the meaning of Section 523(a)(4) is determined by reference to state law, In re Kressner, 164 B.R. 235 (Bankr.S.D.N.Y.1994), although the concept is to be narrowly defined as a matter of federal law. Stone, supra, 94 B.R. at 302. Several factors are considered in determining whether a debt was incurred while acting in a fiduciary capacity. First, the trust relationship must exist prior to the act creating the debt and without reference thereto. Second, the act creating the debt must have been done during the course of the fiduciary relationship. Third, the debt that arises from a breach of a fiduciary duty must be based on an express, technical or statutory trust. In re Gans, 75 B.R. 474, 489 (Bankr.S.D.N.Y.1987); see also In re Marehiando, 13 F.3d 1111 (7th Cir.1994). Barristers introduced no testimony or evidence at trial to establish that Caulfield acted as a fiduciary at the time the debt was incurred. To the contrary, it is clear that Caulfield was simply a tenant in a building which Barristers purchased. A landlord-tenant relationship is not ordinarily a fiduciary one. Top-All Varieties, Inc. v. Raj Development Co., 173 A.D.2d 604, 570 N.Y.S.2d 184 (App.Div.1991); In" }, { "docid": "19283510", "title": "", "text": "In re Smith, 113 B.R. 297, 304 (Bankr.N.D.Tex.1990). The bank renewed the note in December 1996. The parties stipulate that J & K Cattle held cattle valued at $1,187,-637.00. The bank renewed the loan based on that collateral. The bank knew that the Grishams sold cattle during 1996. But in 1996 the Grishams’ herd grew on balance and in value and the Grishams paid the interest due on the loan when the bank renewed the credit. The bank has not established by a preponderance of the evidence that it extended, renewed or refinanced the debt in December 1996 as a result of any false pretense, false representation or fraud by the debtors. This claim shall be dismissed. Section 523(a)(4) The bank alleges that the Grishams sold cattle out of trust without paying the proceeds to the bank. In its complaint, the bank avers that the judgment must therefore be excepted from discharge pursuant to 11 U.S.C. § 523(a)(4). Section 523(a)(4) of the Code excepts from the debtor’s discharge any debt “for fraud or defalcation while acting in a fiduciary capacity ...” To show nondischargeability under § 523(a)(4), a creditor must prove by a preponderance of the evidence that (1) the debt was caused by fraud or defalcation, and (2) there was a fiduciary relationship between the parties at the time the debt was created. In re Chavez, 140 B.R. 413, 422 (Bankr.W.D.Tex.1992). A fiduciary under § 523(a)(4) does not refer to any relationship involving confidence, trust, or good faith, rather § 523(a)(4) concerns a relationship arising out of a technical or express trust. In re Tran, 151 F.3d 339, 342 (5th Cir.1998); Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 79 L.Ed. 393 (1934). An express trust traditionally includes: (1) an explicit declaration of a trust, (2) a defined trust res, and (3) an intent to create a trust relationship. In re Chavez, 140 B.R. 413, 423 (Bankr.W.D.Tex.1992) citing In re Sax, 106 B.R. 534 (Bankr.N.D.Ill.1989). A technical trust may be imposed by law. In re Angelle, 610 F.2d 1335, 1341 (5th Cir.1980). The bank has" }, { "docid": "20300600", "title": "", "text": "v. United States, 363 F.3d 999, 1004 (9th Cir.2004) (citing Diamond v. Kolcum (In re Diamond), 285 F.3d 822, 826 (9th Cir.2002)). DISCUSSION A. The Bankruptcy Court Erred When it Determined that § 523(a)(4)’s Fiduciary Capacity Requirement Had Been Met. Section 523(a)(4) excepts from discharge debts that arise from “fraud or defalcation while acting in a fiduciary capacity. ...” To prevail on a nondischarge-ability claim under § 523(a)(4) the plaintiff must prove not only the debtor’s fraud or defalcation, but also that the debtor was acting in a fiduciary capacity when the debtor committed the fraud or defalcation. See In re Teichman, 774 F.2d 1395, 1398 (9th Cir.1985); and In re Bugna, 33 F.3d at 1057. The broad definition of fiduciary under nonbankruptcy law — a relationship involving trust, confidence, and good faith — is inapplicable in the dischargeability context. Cal-Micro, Inc. v. Cantrell (In re Cantrell), 329 F.3d 1119, 1125 (9th Cir.2003); Lewis v. Short (In re Short), 818 F.2d 693, 695 (9th Cir.1987); Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir.1986); Woosley v. Edwards (In re Woosley), 117 B.R. 524, 529 (9th Cir. BAP 1990). For purposes of § 523(a)(4), the Ninth Circuit has adopted a narrow definition of “fiduciary.” To fit within § 523(a)(4), the fidu ciary relationship must be one arising from an express or technical trust that was imposed before, and without reference to, the wrongdoing that caused the debt as opposed to a trust ex maleficio, constructively imposed because of the act of wrongdoing from which the debt arose. Ragsdale, 780 F.2d at 796; Cantrell, 329 F.3d at 1125 (citing Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1185 (9th Cir.1996)). While the scope of the term “fiduciary capacity” is a question of federal law, the Ninth Circuit has considered state law to ascertain whether the requisite trust relationship exists. Ragsdale, 780 F.2d at 796; In re Cantrell, 329 F.3d at 1125; and In re Woosley, 117 B.R. at 529. For a trust relationship under § 523(a)(4) to be established, the applicable state law must clearly define fiduciary duties and identify trust" }, { "docid": "807228", "title": "", "text": "The Plaintiffs allege that the debts owed by Southern Solutions are nondischargeable debts of the Debtor pursuant to Section 523(a)(4), which provides that a Chapter 7 discharge does not discharge debts that are the result of “fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” 11 U.S.C. § 523(a)(4). The Plaintiffs allege that the failure of Southern Solutions to pay for the produce is a “defalcation” as understood under Section 523(a)(4). To prevail under Section 523(a)(4), it must be shown “that: (1) debtor was acting in a fiduciary capacity; and (2) debtor committed a defalcation while acting in such capacity.” Consumers Produce Co. v. Masdea (In re Masdea), 307 B.R. 466, 472 (Bankr.W.D.Pa.2004) (citing Subich v. Verrone (In re Verrone), 277 B.R. 66, 71 (Bankr.W.D.Pa.2002)). “The concept of a fiduciary is narrower in a bankruptcy context than it is under the common law.” In re Masdea, 307 B.R. at 472. “Whether a debtor qualifies as a fiduciary for purposes of § 523(a)(4) is a question of federal law.” In re Masdea, 307 B.R. at 472 (citing Blyler v. Hemmeter (In re Hemmeter), 242 F.3d 1186, 1189 (9th Cir.2001)); see also In re Verrone, 277 B.R. at 71. Courts have found that, in this context, a fiduciary capacity “only arises in conjunction with a technical trust, as opposed to a constructive or resulting trust.” General Produce, Inc. v. Tucker (In re Tucker), No. 06-50092, Adv. No. 06-5107, 2007 WL 1100482, at* 2 (Bankr.M.D. Ga. April 10, 2007)(citing Quaif v. Johnson, 4 F.3d 950, 953 (11th Cir.1993)); see also Collins Bros. Corp. v. Perrine (In re Perrine), No. 05-10816, Adv. No. 05-1118, 2006 Bankr.LEXIS 2516, at * 17 (Bankr.N.D.Ga. Aug. 8, 2006); Cardile Bros. Mushroom, Pkg., Inc. v. McCue (In re McCue), 324 B.R. 389, 392 (Bankr.M.D.Fla.2005); In re Masdea, 307 B.R. at 472; N.P. Deoudes, Inc. v. Snyder (In re Snyder), 184 B.R. 473, 475 (D.Md. 1995); Nuchief Sales, Inc. v. Harper (In re Harper), 150 B.R. 416, 418 (Bankr. E.D.Tenn.1993); Collins Bros. Corp. v. Nix, No. 91-40817, Adv. No. 91-4040, 1992 WL 119143, at *2 (Bankr.M.D. Ga." }, { "docid": "13712513", "title": "", "text": "Motors, Inc. v. Spector (In re Spector), 22 B.R. 226 (Bankr.N.D.N.Y.1982); Bankr.evid. manual § 30 (West 1997). V. The Meaning of “Fiduciary” § 523(a)(4) provides that: (a) a discharge under section 727 .... does not discharge an individual debtor from any debt— (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. 11 U.S.C.A. § 523(a)(4) (West 1993). Creditor alleges only that Debtor has committed a “defalcation” for purposes of this section, and thus analysis of the requirements for fraud, larceny, or embezzlement is unnecessary for this decision. Our discussion of this appeal will therefore turn on two questions; first, whether the Debtor stood in a fiduciary relationship to the Creditor for purposes of § 523(a)(4). Second, whether the Debtor committed a defalcation under the meaning of this section. To sustain a cause of action for fraud or defalcation under § 523(a)(4), the plaintiff must first establish that the debtor acted while in a fiduciary capacity. Barristers Abstract Corp. v. Caulfield (In re Caulfield), 192 B.R. 808, 818 (Bankr.E.D.N.Y. 1996); DeRosa v. Jacone (In re Jacone), 156 B.R. 740 (Bankr.S.D.N.Y.1993). The definition of fiduciary is to be narrowly construed so that it does not reach debtor-creditor transactions in which the debtor merely violated the terms of his commercial agreement with the creditor. Schwalbe v. Gans (In re Gans), 75 B.R. 474, 489 (Bankr.S.D.N.Y. 1987) (internal quotations omitted). The meaning of fiduciary is a matter of federal law. Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934). The broad, general definition of fiduciary, involving confidence, trust and good faith, is not applicable in discharge-ability proceedings under § 523(a)(4). Peerless Ins. Co. v. Casey (In re Casey), 181 B.R. 763 (Bankr.S.D.N.Y.1995); Farina v. Balzano (In re Bolzano), 127 B.R. 524 (Bankr. E.D.N.Y.1991); In re Gans, 75 B.R. at 489. Section 523(a)(4) applies only to express or technical trusts. Constructive or implied trusts, or any trust where the existence of the trust is created merely on the basis of wrongful conduct (a trust ex maleficio) do not create a fiduciary relationship. OnBank &" }, { "docid": "20605973", "title": "", "text": "three. 1. Fraud or Defalcation While Acting in a Fiduciary Capacity Determining whether a debtor committed fraud or defalcation while acting in a fiduciary capacity is a two-step process. In re Beveridge, 416 B.R. 552, 570 (Bankr.N.D.Tex.2009) (citing Miller, 156 F.3d at 602). First, it must be shown that the requisite fiduciary relationship existed prior to the particular transaction from which the debt arose. See, e.g., In re Cross, 666 F.2d 873, 879 (5th Cir. Unit B 1982); In re Menendez, 107 B.R. 789, 793 (Bankr.S.D.Fla.1989); In re Valdes, 98 B.R. 78, 80 (Bankr.M.D.Fla.1989). Second, some type of fraud or defalcation must have occurred during the fiduciary relationship. In re Chavez, 140 B.R. 413, 422 (Bankr.W.D.Tex.1992). Because the Court finds that no fiduciary relationship existed under § 523(a)(4), the Court never reaches the second step in the analysis. In this context, the existence of a fiduciary relationship is a question of federal law. FNFS, Ltd. v. Harwood (In re Harwood), 637 F.3d 615, 620 (5th Cir.2011). For purposes of § 523(a)(4), the term “fiduciary” is distinct from the concept of a “fiduciary” under the common law. Rather, it is limited to instances involving express or technical trusts. Shcolnik v. Rapid Settlements, Ltd. (In re Shcolnik), 670 F.3d 624, 628 (5th Cir.2012). Constructive or ex maleficio trusts — those created to combat unjust enrichment — are excluded from the scope of § 523(a)(4). Tex. Lottery Comm’n v. Tran (In re Tran), 151 F.3d 339, 342 (5th Cir.1998). “It is not enough that, by the very act of wrongdoing out of which the contested debt arose, the bankrupt has become chargeable as a trustee ex maleficio. He must have been a trustee before the wrong and without reference thereto.” Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 154, 79 L.Ed. 393 (1934). Accordingly, this Court must determine whether or not an express or technical trust, of the kind contemplated by § 523(a)(4), existed between the parties so as to place the Plaintiff in a fiduciary capacity to the Defendant. a. Duties as Former Spouse In this case, nothing" }, { "docid": "21183897", "title": "", "text": "Yet, the Supreme Court also held that collateral estoppel is limited in its application. In order for collateral estoppel to apply, the elements of the claim being litigated must use standards identical to those previously litigated. Brown, at 139, 99 S.Ct. 2205. However, in this case no such allegation is made. Instead, the Defendant argues that because the claims were not litigated in the state court, this Court is barred from deciding the matter, an argument completely contrary to the doctrine’s fundamental tenet: that the issue to be precluded have been previously litigated. Accordingly, the Defendant’s arguments regarding both the preclusionary doctrines of res judicata and collateral estop-pel have no merit. The Court, therefore, now turns to address the substance of the Plaintiffs’ complaint: whether the elements of § 523(a)(4) have been met. On their action under § 523(a)(4), the Plaintiffs rely on that portion of the statute which excepts from discharge any debt that arises as the result of “fraud or defalcation while acting in a fiduciary capacity.” There are thus two determinations that need to be made: (1) was Mr. Kelley acting as a fiduciary; and (2) did he commit the act of defalcation while in his fiduciary capacity? The Plaintiff bears the burden of establishing both these requirements by a preponderance of the evidence. In re Carroll, 140 B.R. 313 (Bankr.D.Mass.1992), citing Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Fiduciary The question of who is a fiduciary is a matter of federal law, although state law gives guidance as to when a trust relationship exists. In re Johnson, 691 F.2d 249, 251 (6th Cir.1982); Miller v. J.D. Abrams Inc., 156 F.3d 598, 602 (5th Cir. 1998) (stating that federal law will never create a fiduciary relationship where state law would not). In this case, whether applying the law of Oregon or Ohio, the attorney-client relationship between the Parties gives rise to a fiduciary relationship. In re Conduct of Brown, 326 Or. 582, 595, 956 P.2d 188 (1998); Adams v. Fleck, 154 N.E.2d 794, 8 Ohio Op.2d 302 (1958), aff'd 171 Ohio" }, { "docid": "20605974", "title": "", "text": "distinct from the concept of a “fiduciary” under the common law. Rather, it is limited to instances involving express or technical trusts. Shcolnik v. Rapid Settlements, Ltd. (In re Shcolnik), 670 F.3d 624, 628 (5th Cir.2012). Constructive or ex maleficio trusts — those created to combat unjust enrichment — are excluded from the scope of § 523(a)(4). Tex. Lottery Comm’n v. Tran (In re Tran), 151 F.3d 339, 342 (5th Cir.1998). “It is not enough that, by the very act of wrongdoing out of which the contested debt arose, the bankrupt has become chargeable as a trustee ex maleficio. He must have been a trustee before the wrong and without reference thereto.” Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 154, 79 L.Ed. 393 (1934). Accordingly, this Court must determine whether or not an express or technical trust, of the kind contemplated by § 523(a)(4), existed between the parties so as to place the Plaintiff in a fiduciary capacity to the Defendant. a. Duties as Former Spouse In this case, nothing in the Divorce Decree itself implicitly or explicitly created a fiduciary relationship between the parties based on their status as former spouses. The Divorce Decree did not designate the Plaintiff as a trustee, nor was any express or technical trust created by way of the document or divorce proceedings. Compare Pattie v. Pattie (In re Pattie), 108 B.R. 791 (Bankr.M.D.Fla.1989) (no fiduciary duty existed where the divorce decree did not designate the debtor as trustee, nor establish an express or technical trust prior to the wrongdoing); with In re Eichelberger, 100 B.R. 861 (Bankr.S.D.Tex.1989) (divorce decree specifically designating debtor as trustee with respect to the community property interest and specifically setting forth fiduciary duties to be performed established a trust relationship). The fact that the Plaintiff may have been required to hold certain property for the Defendant does not create a fiduciary relationship sufficient for § 523(a)(4) purposes. Davis, 293 U.S. at 333, 55 S.Ct. 151; Tran, 151 F.3d at 342-43. A divorce decree ordering separation of marital assets does not in of itself create" }, { "docid": "7123653", "title": "", "text": "personal use of the funds. CONCLUSIONS OF LAW In her two count complaint, Mrs. Merry-well alleges first Mr. Barwick engaged in a fraud upon her to induce her to entrust $20,000 to him. Second, she alleges that Mr. Barwick committed embezzlement, fraud and defalcation while acting in a fiduciary capacity. 11 U.S.C. § 523(a)(4) provides in pertinent part “[t]hat a discharge ... does not discharge an individual debtor from any debt ... (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny .... ” A debtor, therefore, may not discharge in bankruptcy, a debt-based on fraud or defalcation which arose while he was acting in a fiduciary capacity, or embezzlement or larceny whether or not he was acting in a fiduciary capacity. See Collier on Bankruptcy, ¶ 523.14 (15th ed. 1981). This Court must construe the word “fiduciary” narrowly in terms of a technical. or express trust rather than an implied one. In re Lilly, 1 B.R. 773, 774 (Bkrtcy.Md. 1980). The trust must have existed independent and prior to the incident which created the debt. In re Murphy, 9 B.R. 167, 173 (Bkrtcy.E.D.Va.1981). A trust imposed ex maleficio is insufficient to give rise to the existence of a fiduciary relationship for the purposes of bankruptcy law. In re Paley, 8 B.R. 466, 469 (Bkrtcy.E.D.N.Y.1981). See also, Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 153, 79 L.Ed. 393 (1934); Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 511 (2nd Cir.1937). “It is the character of the debt relationship and not its form that determines whether a fiduciary ‘trust’ relationship exists.” Paley at 469. Although the concept of fiduciary is a question of federal law, state law plays an important role in determining whether a case involves an expressed trust. In re Angelle, 610 F.2d 1335, 1341 (5th Cir.1980). Courts routinely conclude that technical trustees act in a fidiciary capacity within the meaning of 11 U.S.C. § 523(a)(4). Collier at ¶ 523.14. Virginia courts also conclude that persons acting under powers of attorney are technical trustees and serve in" }, { "docid": "5932267", "title": "", "text": "(2) the defendant committed fraud or defalcation while acting in his fiduciary capacity; and (3) the plaintiffs debt resulted from such fraud or defalcation. In re Stone, 91 B.R. 589, 593 (D.Utah 1988). For purposes of section 523(a)(4), the meaning of the term “fiduciary capacity” is a question of federal law which has held that the term applies only to technical trusts, express trusts, or statutorily imposed trusts and not to fiduciary relationships which arise from equitable, implied or constructive trusts or an agency relationship. In re Piercy, 140 B.R. 108, 114 (Bankr.D.Md.1992) and cases cited therein; In re Evans, 161 B.R. 474, 477-78 (9th Cir. BAP 1993). In addition, the trust must be in existence before the occurrence of the act from which the debt arose. Stone, 91 B.R. at 594. In other words, the debtor must have been a trustee or fiduciary before the wrong and not a trustee ex male-ficio. Id. However, the courts must look to non-bankruptcy law to determine whether there exist the elements of a trust relationship as required by federal law for a fiduciary relationship to exist. Plaintiffs assert two grounds for finding that the defendant acted in a fiduciary capacity as contemplated in section 523(a)(4): (1) he was acting as an investment adviser under the Investment Adviser Act of 1940 (the “Act”); and (2) he was acting pursuant to a power of attorney authorizing him to make purchases and sales on behalf of his client. 1. Investment Adviser Act of 1940 With respect to plaintiffs’ first basis for finding a fiduciary capacity, a statute creating trust duties may create a fiduciary relationship as to transactions entered into that are governed by the statute. In re Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir.1980). See In re Angelle, 610 F.2d 1335, 1340 (5th Cir.1980). A statute does so if it “contains requirements very much like those traditionally imposed on a trustee” such as requiring segregating, keeping records of trust funds and disbursing them only for . purposes authorized by the statute. Angelle, 610 F.2d at 1340. After a careful examination of" }, { "docid": "19798187", "title": "", "text": "56(c)). Facts are in dispute if a jury could find in favor of the nonmovant and are material if they might affect the outcome of the suit under the law. Id. at 329. Discussion A. 11 U.S.C. § 523(a)(4) provides that a discharge does not discharge an individual debtor from any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” 11 U.S.C. § 523(a)(4). Appellants allege that Debtor engaged in fraud or defalcation while acting in a fiduciary capacity. The district court concluded that Appellants failed to raise a genuine issue of material fact as to whether the Debtor acted in a fiduciary capacity for the purposes of § 523(a)(4). Under § 523(a)(4), the term “fiduciary” is distinct from the concept of a “fiduciary” under the common law; it is “limited to instances involving express or technical trusts. The purported trustee’s duties must ... arise independent of any contractual obligation.” Matter of Tran, 151 F.3d 339, 342 (5th Cir.1998) (citations omitted). See also In re Hickman, 260 F.3d 400, 404-05 (5th Cir.2001). However, state law may create a fiduciary relationship whose breach leads to nondischargeability under § 523(a)(4). See In re Gupta, 394 F.3d 347, 350 (5th Cir.2004) (“This court has, on the other hand, not hesitated to conclude that debts arising from misappropriation by persons serving in a traditional, pre-existing fiduciary capacity, as understood by state law principles, are non-dischargeable.”) (collecting cases). More precisely, we held a debt nondischargeable under § 523(a)(4) where the debtor, who did not deny that he was a fiduciary under the provision, was an officer of the creditor. See Matter of Moreno, 892 F.2d 417, 421 (5th Cir.1990). Even if a corporate officer may be a fiduciary for purposes of § 523(a)(4), the debt at issue here is not a debt “for fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4) (emphasis added). Appellants argue that Shcolnik violated his fiduciary duty by taking files belonging to them, which constitutes “defalcation.” It is true that defalcation does not require fraud or embezzlement, but only willful neglect" }, { "docid": "3099718", "title": "", "text": "collateral for their benefit. They further maintain that debtor committed fraud or defalcation while acting as a fiduciary and seek a determination that the debt owed to them by debtor therefore is excepted from discharge by § 523(a)(4). To prevail under this theory, plaintiffs must prove that: (1) debtor was acting in a fiduciary capacity; and (2) debtor committed fraud or defalcation while acting in that capacity. Subich v. Verrone (In re Verrone), 277 B.R. 66, 71 (Bankr.W.D.Pa.2002). The cause of action asserted in Count II is without merit. Debtor was not acting in a fiduciary capacity vis-a-vis plaintiffs and their collateral. Determining whether debtor was acting in a fiduciary capacity depends on federal law rather than state law. In re Verrone, 277 B.R. at 71. The concept of fiduciary is narrower for purposes of § 523(a)(4) than it is under the common law. One may, in other words, qualify as a fiduciary under the common law without so qualifying for purposes of § 523(a)(4). In re Verrone, 277 B.R. at 71-72. The concept of fiduciary is limited for purposes of § 523(a)(4) only to situations in which an express or technical trust exists. E.g., Matter of Tran, 151 F.3d 339, 342 (5th Cir.1998); Angelle v. Reed (In re Angelle), 610 F.2d 1335, 1338-39 (5th Cir.1980). Constructive or ex maleficio trusts do not qualify. Matter of Tran, 151 F.3d at 342; Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1185 (9th Cir.1996). We must look to state law to determine whether the requisite sort of trust existed. In re Lewis, 97 F.3d at 1185; Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir.1986). The following must be present for an express or technical trust to exist in this case: (1) an express intention to create a trust; (2) an ascertainable res; (3) a sufficiently certain beneficiary; and (4) a trustee who owns and administers the res for the benefit of the beneficiary. First Options of Chicago, Inc. v. Kaplan, 162 B.R. 684, 705 (Bankr.E.D.Pa.1993). These required elements are not present in this case. There is nothing in the record" } ]

[ { "docid": "23569805", "title": "", "text": "would not proceed to trial on the counterclaim. The power to dismiss under Rule 41(b) for failure to prosecute or obey a court order is an inherent aspect of the court’s authority to enforce its orders and insure prompt disposition of lawsuits. Goforth v. Owens, 766 F.2d 1533 (11th Cir.1985). Although dismissal with prejudice under Rule 41(b) is a severe sanction, it may be war ranted in cases of “willful disobedience of a court order or continued or persistent failure to prosecute a complaint.” Mullen v. Galati, 843 F.2d 293, 294 (8th Cir.1988) (quoting Givens v. A.H. Robins Co., Inc., 751 F.2d 261, 263 (8th Cir.1984)). A party’s deliberate refusal to appear at trial and prosecute his counterclaim is grounds for dismissal for failure to prosecute. See Syntex Ophthalmics, Inc. v. Novicky, 795 F.2d 983 (Fed.Cir.1986) (dismissal authorized for intentional refusal to appear at trial and prosecute counterclaim); Kern Oil and Refining Co. v. Tenneco Oil Co., 792 F.2d 1380 (9th Cir.), cert. denied, 480 U.S. 906, 107 S.Ct. 1349, 94 L.Ed.2d 520 (1987) (dismissal of counterclaim was not abuse of discretion where defendant, following denial of voluntary dismissal, refused to proceed with counterclaim before judge to whom ease had been assigned). The prior misrepresentations made to the Court by the Hills’ attorneys, and the filing of bankruptcy on the eve of trial coupled with the stubborn refusal by counsel for the Hills to proceed on the counterclaim even when informed that the Court had denied her motion and the case would be tried as scheduled, suggest sufficient grounds for dismissal under Rule 41(b). This result, while harsh, is justified whether the Hills and their attorneys are using the delay in hopes of gaining a bargaining advantage in settlement negotiations, are somehow trying to get a jury trial on the counterclaim, or simply are putting off the day of reckoning on a meritless claim. Whatever injury the Hills may suffer from failing to try the counterclaim is self-inflicted. There was no legal obstacle to litigating the counterclaim as scheduled. When they refused to go forward, they did so at their" } ]

[ { "docid": "23696861", "title": "", "text": "hold the interests of justice require that we enlarge the record and consider evidence not contained in the record below. For that reason, we deny defendants’ motion to strike. DISMISSAL WITH PREJUDICE “District courts have inherent power to dismiss sua sponte a case for failure to prosecute, and we review the exercise of this power for abuse of discretion.” Sterling v. United States, 985 F.2d 411, 412 (8th Cir.1993) (per curiam); see Fed.R.Civ.P. 41(b). “Dismissals with prejudice are ‘drastic and extremely harsh sanction[s].’ Cases should be dismissed with prejudice only where the plaintiff has intentionally delayed the action or where the plaintiff has consistently and willfully failed to prosecute his [or her] claim.” Sterling v. United States, 985 F.2d at 412 (internal citations omitted); see Garland v. Peebles, 1 F.3d 683, 686-87 (8th Cir.1993); Pardee v. Stock, 712 F.2d 1290, 1292 (8th Cir.1983) (dismissal with prejudice “only when there has been a ‘clear record of delay or contumacious conduct by the plaintiff ”) (internal citation omitted). Contrary to the magistrate judge’s report and recommendation and the district court’s order, plaintiff filed both a response to the motion for summary judgment and written objections to the magistrate judge’s report and recommendation. The response was filed on June 25, 1993, and the written objections on March 4, 1994. The response and the written objections may have been untimely filed. The response was due on June 18,1993, and the written objections on March 3, 1994. Under Fed.R.Civ.P. 56(c) and (e), the adverse party is to “serve” a response to the motion for summary judgment by affidavits or otherwise. Under Fed.R.Civ.P. 72(b), a party is to “serve” and file specific written objections to the proposed findings and recommendations of a magistrate judge. “Service” may be accomplished by mail, and “[sjervice by mail is complete upon mailing.” Fed.R.Civ.P. 5(b). The addition of 3 days for service by mail pursuant to Fed.R.Civ.P. 6(e) would arguably make the written objections timely but not the response to the motion for summary judgment. However, both the response and the written objections would be timely filed under the rule announced" }, { "docid": "7637926", "title": "", "text": "the merits of the underlying order which was challenged in the first motion. III. STANDARD OF REVIEW On appeal, we review the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. Fed. R. Bankr.P. 8013; In re Usery, 123 F.3d 1089, 1093 (8th Cir.1997); O’Neal v. Southwest Mo. Bank (In re Broadview Lumber Co.), 118 F.3d 1246, 1250 (8th Cir.1997) (citing First Nat’l Bank v. Pontow, 111 F.3d 604, 609 (8th Cir.1997)). “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, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). We review the bankruptcy court’s grant or denial of a Rule 59(e) motion to alter or amend a judgment for abuse of discretion. Perkins v. U S West Communications, 138 F.3d 336, 339-40 (8th Cir.1998). See Twin City Const. v. Turtle Mountain Band of Chippewa Indians, 911 F.2d 137, 139 (8th Cir.1990). Similarly, Rule 60(b) motions are within the discretion of the trial court, and we will reverse the denial of a Rule 60(b) motion only when the court has clearly abused its discretion. Peterson v. General Motors Corp., 904 F.2d 436, 440 (8th Cir.1990); Baxter Int’l Inc. v. Morris, 11 F.3d 90, 92 (8th Cir.1993). An abuse of discretion will only be found if the lower court’s judgment was based on clearly erroneous factual findings or erroneous legal conclusions. Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir.1996), cert. denied, 477 U.S. 909, 106 S.Ct. 3286, 91 L.Ed.2d 574 (1986). IV. DISCUSSION Bankruptcy Rule 8002(a) of the Federal Rules of Bankruptcy Procedure requires that a notice of appeal must be filed within ten days of entry of the judgment, order or decree appealed from. Bankruptcy Rule 8002(b), however, provides that certain motions, if timely filed, will toll the time" }, { "docid": "14901477", "title": "", "text": "PER CURIAM. Garland Farnsworth and John Johnson appeal pro se from the order of the district court sua sponte dismissing with prejudice their civil rights action for failure to comply with the district court’s orders to cooperate with appellees in preparing a discovery schedule. For reversal, appellants argue (1) the district court abused its discretion in dismissing their action with prejudice; (2) the district court erred in mooting appellants’ motion for a protective order and awarding attorneys’ fees to appel-lees for appellants’ failure to attend scheduled depositions; and (3) the district court’s bias against appellants denied them due process. We affirm. Pro se litigants are not excused from complying with court orders or substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.1984) (per curiam). A district court’s dismissal as a sanction under Federal Rule of Civil Procedure 37 for failure to comply with a discovery order is reviewed under an abuse of discretion standard. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam); Hazen v. Pasley, 768 F.2d 226, 229 (8th Cir.1985). After carefully reviewing the record on appeal, we note that the district court gave appellants meaningful notice of what was expected of them during the course of discovery, initially imposed less stringent sanctions when they failed to cooperate, and warned them that their failure to comply with subsequent court orders would result in dismissal of their action. Accordingly, we hold that dismissal was proper. See Ramsay v. Bailey, 531 F.2d 706, 709 (5th Cir.1976) (per curiam). We further hold that the district court did not abuse its discretion in awarding to appellees attorneys’ fees after appellants failed to attend their properly-noticed depositions. See Fed.R.Civ.P. 37(d); King v. Fidelity Nat. Bank, 712 F.2d 188, 191 (5th Cir.1983) (per curiam), cert. denied, 465 U.S. 1029, 104 S.Ct. 1290, 79 L.Ed.2d 692 (1984). Finally, appellants’ allegations of district court bias and prejudice are wholly unfounded. Accordingly, the district court’s judgment is affirmed. . The Honorable Scott O. Wright, United States District Judge for the" }, { "docid": "12532790", "title": "", "text": "30, 1986, pursuant to Bankruptcy Rule 8018, the United States District Court for the Western District of Missouri, en banc, entered a General Order providing: That the judges of the Bankruptcy Court of the Western District of Missouri may hereafter dismiss appeals from decisions of the Bankruptcy Court filed in this court for failure of any of the parties thereto to perfect an appeal by not filing appropriate documents with the Clerk of the court as provided in the Bankruptcy Rules or Sections of Title 28, U.S.C.A. In order to perfect an appeal the appellants must file a designation of items to be included in the record on appeal and a statement of the issues to be presented within ten days after filing the notice of appeal. Bankruptcy Rule 8006. Although the bankruptcy court had authority to dismiss appellants’ second appeal for failing to perfect their appeal, its dismissal is subject to review by the district court for abuse of discretion. See In re Hill, 775 F.2d 1385, 1386 (9th Cir.1985). When the appellate court reviews the lower court’s exercise of discretion, “the inquiry is confined to whether [the] situation and circumstances clearly show an abuse of discretion, that is, arbitrary action not justifiable in view of such situation and circumstances.” Hartford-Empire Co. v. Obear-Nester Glass Co., 95 F.2d 414, 417 (8th Cir.1938). Failure to file designations and statements is a non-jurisdictional defect in the prosecution of an appeal, In re Bienert, 48 B.R. 326, 327 (N.D.Iowa 1985), unlike failure to file timely a notice of appeal. Fase v. Seafarers Welfare & Pension Plan, 574 F.2d 72, 75-76 (2d Cir.1978). “Not every failure to follow procedural rules mandates dismissal of the appeal.” In re Comer, 716 F.2d 168, 177 (3rd Cir.1983). Dismissal is a drastic sanction. When dismissal is based on a party’s non-jurisdictional procedural default, the “dismissal is proper only when bad faith, negligence or indifference has been shown.” In re Beverly Manufacturing Corp., 778 F.2d 666, 667 (11th Cir.1985) (citing In re Winner Corp., 632 F.2d 658 (6th Cir.1980)). Here, although appellants filed their motion for leave to" }, { "docid": "2351723", "title": "", "text": "FLOYD R. GIBSON, Senior Circuit Judge. Charles and Marion Hefti appeal the tax court’s dismissal of their case for failure to comply with orders of that court. We vacate the judgment and remand for determination of whether Treas. Reg. § 301-7609-5(b) exceeds the congressional authorization in I.R.C. § 7609(e). I. BACKGROUND A. The Dismissal The Heftis received a statutory notice of deficiency from the Commissioner of Internal Revenue (the “Commissioner”) on December 7, 1987, for deficiencies in the tax years 1983, 1984, and 1985. In March 1988, the Heftis filed petitions in the tax court seeking a redetermination of only the 1983 case. The Heftis argued that the determination and penalties were assessed in error and that the Commissioner had sent their statutory notice of deficiency beyond the three-year limitations period prescribed by statute. The Heftis were familiar with proceedings in tax courts, having been involved in litigation with the Commissioner on other occasions. Their pro se pleadings evidence at least some working knowledge of procedure and even some substantive law. Nevertheless, they repeatedly failed to cooperate with the Commissioner in the preparation of a stipulation and, when they cooperated, did so only on the barest of facts such as their names and place of residence. They were well apprised of when and where their trial was to be held. Nevertheless, they were without justifiable excuse for their failure to appear when their case was called in October 1988. We find it unnecessary to detail any further facts in this regard, and suffice it to say that the record makes it clear that the tax court did not abuse its discretion by dismissing the Heftis’ case for the 1983 year. See Long v. C.I.R., 742 F.2d 1141 (8th Cir.1984) (per curiam); Hart v. C.I.R., 730 F.2d 1206, 1208 (8th Cir.1984) (per curiam). We affirm the tax court on that point, subject to the remand discussed below. The tax court, of course, was without authority to render a decision on the 1984 and 1985 years as they were not contested by the petition before it. The facts surrounding the statute of" }, { "docid": "20593163", "title": "", "text": "the terms of the Release as an affirmative defense. Plaintiffs moved to dismiss Riceland’s counterclaim. Concluding that Plaintiffs’ claims do not, as a matter of law, “arise” or “grow” out of the presence of Bayer’s LLRICE in the United States rice supply and are therefore not subject to the Release, the district court granted Plaintiffs’ motion to dismiss Riceland’s counterclaim. Riceland then sued the law-firm plaintiffs and additional law firms in Arkansas state court, asserting the same legal theories and facts presented in its counterclaim. Riceland sought an expedited trial schedule in the Arkansas state case, prompting Plaintiffs to request an order from the district court certifying the dismissal of Riceland’s counterclaim as a final judgment under Rule 54(b). Such an order presumably would bind Riceland in the Arkansas state court and compel dismissal of that case. Finding that Plaintiffs would suffer injustice if entry of final judgment were delayed, the district court certified the dismissal as a final judgment under Rule 54(b). Riceland appeals both the Rule 54(b) certification and the dismissal of its counterclaims. II. Riceland raises two arguments on appeal: (1) this Court lacks jurisdiction to hear this appeal; and (2) the district court erred in holding that Plaintiffs did not release their claims against Riceland. We address each of these arguments in turn. A. Jurisdiction We first address Riceland’s argument that this court lacks jurisdiction because the district court abused its discretion in directing entry of final judgment pursuant to Rule 54(b). “This court independently reviews ... appellate jurisdiction.” Outdoor Cent., Inc. v. Great-Lodge.com, Inc., 643 F.3d 1115, 1118 (8th Cir.2011) (citing Matschiner v. Hartford Life & Acc. Ins. Co., 622 F.3d 885, 886 n. 1 (8th Cir.2010) (“We independently review whether the district court’s Rule 54(b) determination that there was ‘no just reason for delay’ properly conferred appellate jurisdiction under 28 U.S.C. § 1291.” (quoting Interstate Power Co. v. Kansas City Power & Light Co., 992 F.2d 804, 806-07 (8th Cir.1993)))). In reviewing Rule 54(b) determinations, we apply an abuse of discretion standard and “largely defer[] to the district court’s weighing of the equities, but" }, { "docid": "18823698", "title": "", "text": "had told him the lump had disappeared or indicated that Garland had lied for insurance purposes. In an order filed November 18, 1992, the district court found that Garland had revealed no information in the ex parte conference that cast doubt upon the propriety of her attorneys’ request to withdraw. The court also found that Garland had not revealed anything to persuade the court to continue the case. Considering the case’s history, the court determined that a continuance would not ensure that Garland would be ready for trial in the foreseeable future. The court stated that any further delay would work an unduly prejudicial hardship on Dr. Peebles. Accordingly, the court granted Dr. Peebles’s motion to dismiss Garland’s complaint with prejudice for failure to prosecute. II. On appeal, Garland, still represented by the Hicks law firm, argues that the district court erred in dismissing her case for failure to prosecute. She contends that she did not engage in conduct that warranted such a dismissal. She argues that once the district court permitted her attorneys to withdraw, the court should have either called the case for trial, allowing her to proceed pro se, or continued the case. A dismissal for failure to prosecute is proper when there has been “a clear record of delay or contumacious conduct by the plaintiff.” Brown v. Frey, 806 F.2d 801, 803 (8th Cir.1986). We review a district court’s dismissal for failure to prosecute under the abuse of discretion standard. See, e.g., Du-Bose v. Minnesota, 893 F.2d 169, 171 (8th Cir.1990). In reviewing a district court’s decision, we balance the court’s need to advance a crowded docket versus the consequences of denying a plaintiff his day in court. See, e.g., Brown, 806 F.2d at 804 (citing Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir.1976)). We consider the nature of the conduct that prompted the dismissal and the adverse impact of such conduct upon both the defendant and the administration of justice in the dis trict court. Id. We also consider the availability of other less severe options. See, e.g., Pardee v." }, { "docid": "22537904", "title": "", "text": "called for trial. Dismissal with prejudice and default on counterclaims, for willful and inexcusable failure to prosecute, are proper exercises of discretion under Federal Rules of Civil Procedure 41(b), 16(f), and the inherent power of the court. Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962); Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir.1987); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986); Rung v. FOM Inv. Corp., 563 F.2d 1316, 1318 (9th Cir.1977); Cunningham v. United States, 295 F.2d 535, 536 (9th Cir.1961); DuBose v. Minnesota, 893 F.2d 169, 171 (8th Cir.1990). Although any such dismissal and default prevents disposition on the merits, and we assume for purposes of discussion that Al-Torki was prejudiced because his case was meritorious, nevertheless the culpability of a willful failure to appear for trial, and the prejudice to the side which does appear for trial, as well as the interference with the court’s docket, may be held by the district court to outweigh those factors. Cassidy, 856 F.2d at 1415. Failure to appear for trial, without excuse, prejudices an adversary and interferes with the court’s docket about as much as any procedural default can. The other side is likely to have spent thousands of dollars getting its lawyers ready to try the case and arranging for witnesses and exhibits to be available. If the trial does not proceed, the money and effort will have been wasted. The judge is likely to have gone to considerable trouble to clear out time from criminal eases, motion hearings, work in chambers, and other matters, for the civil trial. In many cases, though not this one, jurors and witnesses will have been put to great inconvenience. This is no doubt why the inherent power of a court to dismiss with prejudice for failure to prosecute “is of ancient origin.” Link, 370 U.S. at 630, 82 S.Ct. at 1388 (citing 3 Blaekstone, Commentaries on the Laws of England 450-51 (1768)). The dismissal with prejudice and default on counterclaims were appropriate exercises of discretion. II. Reviewability of" }, { "docid": "23696860", "title": "", "text": "and in his other litigation. “Generally, an appellate court cannot consider evidence that was not contained in the record below. However, this rule is not etched in stone. When the interests of justice demand it, an appellate court may order the record of a case enlarged.” Dakota Industries, Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir.1993). One of the challenged documents, document A-13, is a photocopy of plaintiffs prison correspondence log, which appears to support plaintiffs explanation, not contradicted by defendants, for the delayed filings and thus at least raises the possibility that plaintiff did not act intentionally or willfully to delay his action. However, it was not presented to the district court and thus was not part of the record below precisely because, until the action was dismissed for failure to prosecute, plaintiff was unaware of any delay in mailing. As discussed below, this is the kind of information which would have been helpful to the district court in deciding whether to dismiss for failure to prosecute. Under the circumstances we hold the interests of justice require that we enlarge the record and consider evidence not contained in the record below. For that reason, we deny defendants’ motion to strike. DISMISSAL WITH PREJUDICE “District courts have inherent power to dismiss sua sponte a case for failure to prosecute, and we review the exercise of this power for abuse of discretion.” Sterling v. United States, 985 F.2d 411, 412 (8th Cir.1993) (per curiam); see Fed.R.Civ.P. 41(b). “Dismissals with prejudice are ‘drastic and extremely harsh sanction[s].’ Cases should be dismissed with prejudice only where the plaintiff has intentionally delayed the action or where the plaintiff has consistently and willfully failed to prosecute his [or her] claim.” Sterling v. United States, 985 F.2d at 412 (internal citations omitted); see Garland v. Peebles, 1 F.3d 683, 686-87 (8th Cir.1993); Pardee v. Stock, 712 F.2d 1290, 1292 (8th Cir.1983) (dismissal with prejudice “only when there has been a ‘clear record of delay or contumacious conduct by the plaintiff ”) (internal citation omitted). Contrary to the magistrate judge’s report and recommendation and" }, { "docid": "22937896", "title": "", "text": "contrary. In Coston, this court upheld the district court’s Rule 41(b) dismissal in light of plaintiffs counsel’s repeated failure to appear at scheduled pretrial conferences and his failure to appear at a summary judgment hearing. See Coston, 789 F.2d at 379. Similarly, in Hughley, we upheld dismissal because plaintiffs attorney’s “failure to appear at the trial date was the result of a conscious choice by plaintiffs to suffer the consequence of dismissal rather than to proceed to trial in the posture of the ease as it then stood.” Hughley, 572 F.2d at 557. Finally, in Hannon, we held that the following circumstances warranted a conclusion that the plaintiffs counsel had engaged in contumacious conduct: Harmon failed to respond to the amicable requests of CSXT’s counsel, he failed to respond to CSXT’s motion to compel, and he failed to comply with the district court’s November 2, 1995, order. To make matters worse, Harmon then failed to respond to the motion to dismiss, even after the district court was gracious enough to grant him an extension of time. This record is more than adequate to establish that Harmon’s counsel was stubbornly disobedient and willfully contemptuous. Hannon, 110 F.3d at 368. The conduct of plaintiffs counsel in the present case is more closely analogous to that, of the attorneys in Coston, Hughley, and Hannon than that of the attorneys in Bishop and Carter. Here, counsel neglected plaintiffs case, repeatedly ignored court orders without excuse, and ultimately attempted to force the court to grant a continuance by refusing to proceed on the day of trial. Where a plaintiff does not appear at the trial date or, as in this case, is inexcusably unprepared to prosecute the case, Rule 41(b) dismissal is particularly appropriate. Indeed, such behavior constitutes the epitome of a “failure to prosecute.” See, e.g., Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir.1993) (“The remedy [Rule 41(b) dismissal] is usually applied when the plaintiff is not ready for trial or fails to appear.”); DuBose v. Minnesota, 893 F.2d 169, 171 (8th Cir.1990) (upholding district court’s dismissal in light of plaintiffs attorney’s failure" }, { "docid": "8687513", "title": "", "text": "the three deadlines set by the court when it granted postponement for her to retain counsel. After her first action was dismissed for failure to retain counsel eleven months passed before Garrison initiated the instant action, and she was still without counsel. After filing her pro se “complaint” in the instant action, Garrison failed to serve process on International Paper over a period of nine months. Finally, Garrison failed to respond to International Paper’s motion to dismiss for a period of ten months. Each of the delays in this long history could conceivably be excused by some special circumstance, but no excuse has been offered. Absent any excuse, this history shows a pattern of intentional delay justifying dismissal with prejudice for failure to prosecute. See Moore Co. of Sikeston, Mo. v. Sid Richardson Carbon & Gas Co., 347 F.2d 921, 923 (8th Cir.1965) (“Rule 41(b) [providing for dismissal for failure to prosecute] provides adequate protection against unreasonable delay in serving process ... ”); Grunewald v. Missouri Pacific Railroad Co., 331 F.2d 983 (8th Cir.1964) (dismissal affirmed where trial was postponed after plaintiff’s original counsel withdrew, trial was again postponed when plaintiff failed to retain new counsel until eve of reset trial date, and new counsel withdrew on eve of trial). A secondary factor in striking the required balance is the adverse effect of the plaintiff’s conduct on the defendant and on the administration of justice. Moore v. St. Louis Music Supply Co., Inc., supra. In this case Garrison’s substantive claims relate to events which occurred between June 1972 and October 1975, from eleven to eight years ago. The district court could reasonably conclude that International Paper would be prejudiced and justice not served by the trial of these stale claims, since memories will have faded and evidence will have been lost in other ways. Pearson v. Dennison, 353 F.2d 24, 28 (9th Cir.1965) (“Delay is almost always prejudicial ... ”). III. CONCLUSION Finding no abuse of discretion in the district court’s dismissal of Garrison’s complaint for failure to prosecute, we affirm. . The Honorable Oren E. Harris, United States Senior" }, { "docid": "18823699", "title": "", "text": "withdraw, the court should have either called the case for trial, allowing her to proceed pro se, or continued the case. A dismissal for failure to prosecute is proper when there has been “a clear record of delay or contumacious conduct by the plaintiff.” Brown v. Frey, 806 F.2d 801, 803 (8th Cir.1986). We review a district court’s dismissal for failure to prosecute under the abuse of discretion standard. See, e.g., Du-Bose v. Minnesota, 893 F.2d 169, 171 (8th Cir.1990). In reviewing a district court’s decision, we balance the court’s need to advance a crowded docket versus the consequences of denying a plaintiff his day in court. See, e.g., Brown, 806 F.2d at 804 (citing Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir.1976)). We consider the nature of the conduct that prompted the dismissal and the adverse impact of such conduct upon both the defendant and the administration of justice in the dis trict court. Id. We also consider the availability of other less severe options. See, e.g., Pardee v. Stock, 712 F.2d 1290, 1292 (8th Cir.1983) (citing St. Louis Music Supply, 539 F.2d at 1193). Given the unusual circumstances of this case, we hold that the district court did not abuse its discretion by dismissing Garland’s complaint. Garland engaged in conduct that prevented this case from going to trial. She created an ethical conflict that forced her attorneys to request to withdraw from her case. Against the advice of her attorneys, she refused to admit that she had lied to Dr. Bookout and Ms. Frame. By insisting that her case be tried in a manner that five attorneys found unethical, Garland was directly responsible for her case not going to trial on its scheduled trial date. The court did not err by not allowing Garland to try her case pro se. Garland was extremely ill on the day trial was to begin (indeed, too ill to come to the courtroom that morning), so permitting her to proceed pro se was not a realistic option. Likewise, the court did not err by not continuing the" }, { "docid": "21091160", "title": "", "text": "on appeal was contained in the designated record. Consequently, the district court has an adequate record upon which to decide the merits of the appeal, and the purpose of Rule 8006 has therefore been satisfied despite Appellants’ failure to strictly adhere to its technical requirements. Furthermore, the record does not indicate that Appellees’ ability to respond to the appeal has been impaired in any way. Appellees do not here contend that they were prejudiced by the incomplete designation of record excerpts. Moreover, because Appellants filed their brief and sufficient record excerpts in support thereof, Appellees were placed on notice as to what issues they would be required to defend, and have an adequate record on which to defend them. Furthermore, Ap-pellees have not alleged that either the bankruptcy estate or its creditors have suffered any injury from the delayed filing of the statement of issues; and our review of the record reveals none. See Braniff, 774 F.2d at 1304 (citing Pyramid, 531 F.2d at 746). Thus, we conclude that Appellees suffered no prejudice under these circumstances. In addition, there is no evidence of either an intent to delay or obstinately dilatory conduct on the part of Appellants that could otherwise justify dismissal. See Fitzsimmons, 920 F.2d at 1474 (finding that a district court was not required to consider other factors when appellants had exhibited “bad faith behavior”). Rather, the record establishes that Appellants timely filed their notice of appeal, record designation, and appellate brief and complied with the rules of bankruptcy procedure with regard to all other aspects of prosecuting their appeal. Cf. In re Champion, 895 F.2d 490, 492 (8th Cir.1990) (per curiam) (no abuse of discretion for dismissing appeal when appellant had not filed a designation of record excerpts or statement of issues nine months after filing of notice of appeal); Greco v. Stubenberg, 859 F.2d 1401, 1403-04 (9th Cir.1988) (no abuse of discretion for dismissing appeal when appellant’s counsel repeatedly failed to order transcripts, misrepresented to court that transcripts had been ordered, and did not notify court of inability to do so for nine months); Pyramid, 531" }, { "docid": "6904836", "title": "", "text": "the EEOC issued a right to sue letter based on the October 1984 and May 1985 charges. In August 1986, appellees filed a motion for summary judgment on all counts of the complaint. The district court (1) granted appellees summary judgment on all Du-Bose’s claims made pursuant to 42 U.S.C. §§ 1981-1988 and the Minnesota Human Rights Act on the basis of eleventh amendment immunity; (2) granted appellees summary judgment on the Title VII claims based on the October 1984 EEOC charges, holding that these charges had been untimely filed with the EEOC; (3) denied Du- Bose’s claim for attorney’s fees, as DuBose was not yet a prevailing party; and (4) denied appellees’ motion for summary judgment on DuBose’s remaining Title VII claims, as there were disputed material facts. DuBose’s appeal from the grant of summary judgment in favor of the appel-lees was dismissed by this court as premature in DuBose v. Minnesota, 815 F.2d 711 (8th Cir.1987). In June 1987, the magistrate to whom the case was referred granted counsel’s motion to withdraw, gave DuBose thirty days to obtain new counsel, and set a pretrial conference for August 4,1987. On the morning of August 4th, DuBose notified the court by phone that he did not have counsel and would not appear at the pretrial conference. In a subsequent order setting the trial date for DuBose’s remaining Title VII claims, the magistrate noted that DuBose had similarly failed to comply with other pretrial orders and that DuBose was attempting to “play games” with the court. On October 19, 1987, DuBose did not appear for trial even though he had been informed of the trial date on three occasions. The district court granted appellees’ Rule 41(b) motion and entered a judgment dismissing DuBose’s complaint for failure to prosecute. This appeal followed. We find no abuse of discretion in the district court’s dismissal of DuBose’s complaint pursuant to Rule 41(b). See Brown v. Frey, 806 F.2d 801, 803 (8th Cir.1986) (citations omitted) (a district court does not abuse its discretion in dismissing with prejudice if there has been “ ‘a clear record" }, { "docid": "11544087", "title": "", "text": "PER CURIAM. Myron and Virginia Jacobson appeal the district court’s order dismissing their appeal from the bankruptcy court’s judgment against them in an adversary proceeding. The district court dismissed the appeal on the grounds that the Jacobsons failed to file a notice of appeal within ten days of entry of the bankruptcy court’s order, as required by Bankruptcy Rules 8001(a) and 8002(a), and to file a designation of items to be included in the record on appeal within ten days after filing a notice of appeal, as required by Bankruptcy Rule 8006. We affirm. We conclude that the district court properly dismissed the Jacobsons’ appeal as untimely. “Failure to file a timely notice of appeal [from a bankruptcy court’s order] ... deprives the district court of jurisdiction to review the bankruptcy court’s order or judgment.” In re Universal Minerals, Inc., 755 F.2d 309, 312 (3d Cir.1985). The record supports the bankruptcy court’s determination that the Jacobsons failed to demonstrate excusable neglect under Bankruptcy Rule 8002(c) for the late appeal. See Gilbert v. Suburban Athletic Club (In re Dayton Circuit Courts No. 2), 85 B.R. 51, 55 (Bankr.S.D.Ohio 1988) (Rule 8002(c)’s excusable neglect exception is interpreted strictly based on Fed.R.App.P. 4(a)); Vogelsang v. Patterson Dental Co., 904 F.2d 427, 431 (8th Cir.1990) (under Fed.R.App.P. 4(a), excusable neglect may be found where party did not learn of entry of judgment, or in extraordinary cases where injustice would otherwise result, but not when delay is caused by attorney’s oversight or busy schedule); Aponte v. Aungst (In re Aponte), 91 B.R. 9, 11-12 (Bankr.E.D.Pa.1988) (attorney’s involvement in state court litigation did not rise to level of excusable neglect). Accordingly, we affirm. . The Honorable William G. Cambridge, United States District Judge for the District of Nebraska. . The Honorable Timothy J. Mahoney, Chief Judge, United States Bankruptcy Court for the District of Nebraska." }, { "docid": "8687510", "title": "", "text": "Garrison-, still without counsel, filed her EEOC charges with the court. This pro se “complaint” was never served on International Paper. After nine months, on September 17, 1981, the district court ordered Garrison to file a formal complaint by October 19,1981 and to serve process of International Paper no later than October 26, 1981. Garrison finally retained counsel and complied with the court’s order, filing a complaint stating claims under Title VII and § 1981 and serving process on International Paper by the required dates. On November 23, 1981, International Paper moved to dismiss the complaint. Garrison failed to resist this motion which remained pending for ten months. On September 27, 1982, the district court dismissed the complaint with prejudice for the reasons urged by International Paper and for failure to prosecute. Garrison subsequently moved for reconsideration of the court’s order, which the court denied. This appeal followed. II. DISCUSSION The district court has inherent power, acting on its own initiative, to dismiss a cause of action with prejudice for failure to prosecute. Link v. Wabash Railroad Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1388-1389, 8 L.Ed.2d 734 (1962). Such a dismissal is reviewable only for abuse of discretion. Id., at 633, 82 S.Ct. at 1390; Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1208 (8th Cir.1983). Dismissal with prejudice is a harsh sanction which should be imposed only after balancing the policy of giving the plaintiff her day in court against policies of preventing undue delay, avoiding court congestion, and preserving respect for court procedures. See Moore v. St. Louis Music Supply Co., Inc., 539 F.2d 1191 (8th Cir.1976); Navarro v. Chief of Police, Des Moines, Iowa, 523 F.2d 214 (8th Cir.1975). In striking this balance, all the facts and circumstances of the case must be considered. Navarro v. Chief of Police, Des Moines, Iowa, supra. The most important factor in the balance is the egregiousness of the plaintiff’s conduct. Moore v. St. Louis Music Supply Co., Inc., supra. A pattern of intentional delay by the plaintiff is sufficiently egregious conduct to warrant dismissal with prejudice." }, { "docid": "13386933", "title": "", "text": "to Bankruptcy Rule 8007(b) on the same date. . See also In re SPR Corp., 45 F.3d 70, 74 (4th Cir.1995) (recognizing district court's discretion under Bankruptcy Rule 8001 to take action short of dismissal when appellant fails to file timely statement of issues on appeal); In re Roete, 936 F.2d 963, 967 (7th Cir.1991) (sanction for filing of frivolous brief was not abuse of discretion); In re Fitzsimmons, 920 F.2d 1468, 1471 (9th Cir.1990) (standard for reviewing dismissal for noncompliance with nonjurisdictional bankruptcy rules is abuse of discretion); Instituto Nacional v. Continental Ill. Nat’l Bank & Trust Co., 858 F.2d 1264, 1272 (7th Cir.1988) (denial of extension for filing of brief was not abuse of discretion). . See In re Tampa Chain Co., 835 F.2d 54, 55-56 (2d Cir.1987) (per curiam) (affirming dismissal of bankruptcy appeal after brief was filed seven months late without explanation); In re Beverly Mfg. Corp., 778 F.2d 666, 667 (11th Cir.1985) (vacating dismissal, remanding to determine whether untimely filing of briefs was result of bad faith, negligence or indifference); In re Braniff Airways, Inc., 774 F.2d 1303, 1305 (5th Cir.1985) (finding no abuse of discretion in district court's dismissal after brief, without explanation, was not filed I9'k months after entry of appeal); see also In re Fitzsimmons, 920 F.2d at 1472 (dismissal for failure to file designation of record or statement of issues on appeal based on bad faith); In re Winner Corp., 632 F.2d 658, 660-61 (6th Cir.1980) (holding that late filing of designation of record, absent evidence of bad faith, did not justify dismissal of appeal); In re Drexel Burnham Lambert Group, Inc., 142 B.R. 633, 636 (S.D.N.Y.1992) (holding that delay in filing brief, alone, was insufficient to warrant dismissal when appellant provided explanation for tardiness, even if a weak one). . See, e.g., In re Fitzsimmons, 920 F.2d at 1471-72 (holding that three-year delay in filing of documents, coupled with misrepresentations to court, was bad faith conduct warranting dismissal); In re Champion, 895 F.2d 490, 492 (8th Cir.1990) (holding no abuse of discretion to dismiss when appellant repeatedly failed to make" }, { "docid": "1106041", "title": "", "text": "(10th Cir.1994) (dismissal of pro se appeal for failure of appellant to file timely designation of record or brief was not abuse of discretion even though debtor did not have an attorney’s assistance in preparing the appeal); In re Tampa Chain Co., Inc., 835 F.2d 54 (2d Cir.1987) (no abuse of discretion in dismissal for want of prosecution where defendants failed to file any brief for approximately seven months and district court asked for and received no explanation for delay); Matter of Braniff Airways, Inc., 774 F.2d 1303 (5th Cir.1985) (dismissal no abuse of discretion where appellant’s brief was not filed within fifteen days and no brief had been filed VJ% months later when appeal was dismissed); but see Jewelcor, 11 F.3d at 398 (dismissal for failure to file brief was not proper where appellant received no notice that appeal had been docketed in the district court); In re Beverly Mfg. Corp., 778 F.2d 666 (11th Cir.1985) (dismissal was improper where delayed filing of brief was only necessary step in prosecution of appeal not fulfilled, and filing of brief depended on delayed processing of record). However, because this court finds the decision of the bankruptcy court to be without error, it will not rest its affirmance of the bankruptcy court’s deci sion and dismissal of the appeal solely on the ground that the appellant failed to file the required brief. B.Standard Of Review The court therefore turns to the standard of review applicable to the appeal of the decision by the bankruptcy court. As recent decisions demonstrate, the Eighth Circuit Court of Appeals has stated that standard of review with remarkable consistency and succinctness. In reviewing the district court’s disposition of the appeal, the court of appeals, as a second court of appeals, “sit[s] in the same position as did the district court.” See, e.g., Affeldt v. Westbrooke Condominium Assoc., 60 F.3d 1292, 1294-95 (8th Cir.1995); In re Kjellsen, 53 F.3d 944, 946 (8th Cir.1995); In re Foust, 52 F.3d 766, 768 (8th Cir.1995); In re Montgomery, 37 F.3d 413, 414-15 (8th Cir.1994); In re Wagner, 36 F.3d 723, 726" }, { "docid": "12532791", "title": "", "text": "reviews the lower court’s exercise of discretion, “the inquiry is confined to whether [the] situation and circumstances clearly show an abuse of discretion, that is, arbitrary action not justifiable in view of such situation and circumstances.” Hartford-Empire Co. v. Obear-Nester Glass Co., 95 F.2d 414, 417 (8th Cir.1938). Failure to file designations and statements is a non-jurisdictional defect in the prosecution of an appeal, In re Bienert, 48 B.R. 326, 327 (N.D.Iowa 1985), unlike failure to file timely a notice of appeal. Fase v. Seafarers Welfare & Pension Plan, 574 F.2d 72, 75-76 (2d Cir.1978). “Not every failure to follow procedural rules mandates dismissal of the appeal.” In re Comer, 716 F.2d 168, 177 (3rd Cir.1983). Dismissal is a drastic sanction. When dismissal is based on a party’s non-jurisdictional procedural default, the “dismissal is proper only when bad faith, negligence or indifference has been shown.” In re Beverly Manufacturing Corp., 778 F.2d 666, 667 (11th Cir.1985) (citing In re Winner Corp., 632 F.2d 658 (6th Cir.1980)). Here, although appellants filed their motion for leave to file their designation and statement on December 17, 1987, two days after the filings were due, the bankruptcy court’s order dismissing the appeal on that basis was an abuse of discretion. The bankruptcy court acted on its own motion, providing the parties with no opportunity to present the circumstances surrounding their delay. Where bankruptcy appeals have been dismissed for failure to designate timely, there has usually been consistently dilatory conduct by the parties, a complete failure by the parties to do anything beyond filing a notice of appeal or failure by the parties to respond to a motion to dismiss. See, e.g., In re Bock Laundry Machine Co., 63 B.R. 221 (N.D.Ohio 1986) (Court dismissed appeal five months after notice of appeal was filed and appellant failed to file designation and statement and did not respond to motion to dismiss). However, more frequently courts have refused to dismiss an appeal for failure to comply with a procedural rule in the absence of bad faith or prejudice to the appellees, finding dismissal a drastic sanction. See," }, { "docid": "23485259", "title": "", "text": "within ten days, the actions would be dismissed. No action was taken within the time limit, and on January 31, 1984, the actions were dismissed. Although pro se pleadings are to be construed liberally, pro se litigants are not excused from failing to comply with substantive and procedural law. Faretta v. California, 422 U.S. 806, 834-35 n. 46, 95 S.Ct. 2525, 2540-41 n. 46, 45 L.Ed.2d 562 (1975). A pro se litigant should receive meaningful notice of what is expected of him, but the court is not permitted to act as counsel for either party. Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir.1983). A district court has power to dismiss an action for refusal of the plaintiff to comply with any order of court, Fed.R.Civ.P. 41(b), and such action may be taken on the court’s own motion. M.S. v. Wermers, 557 F.2d 170, 175 (8th Cir.1977). Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95, 96 (8th Cir.1971). Although a dismissal with prejudice is a drastic remedy, a pattern of intentional delay by the plaintiff is sufficient to warrant such action by the trial court. Garrison v. International Paper Co., 714 F.2d 757, 760 (8th Cir.1983). The standard of review from a dismissal order is whether the district court has abused its discretion. Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir.1976). In this case, Burgs showed a lack of diligence in pursuing his suits and an apparent unwillingness to comply with the orders of the court. He was given three opportunities to comply with the district court’s pretrial order and was forewarned each time that failure to do so could result in dismissal. The district court finally dismissed the actions when Burgs did not respond in time to its order of January 5, 1984. We find the district court did not abuse its discretion, and accordingly affirm the judgment of the district court pursuant to 8th Cir. R. 12(a)." } ]

[ { "docid": "22910829", "title": "", "text": "extension of the word “ seaman,” and it is argued that a seaman upon a German vessel clearly would not be given the rights claimed. It is said that the word is defined by R. S. § 4612, TJ. S. Code, Tit. 46, § 713. But that section merely provides that for the purposes of the chapter “ seaman ” shall include persons who otherwise might be deemed not to be seamen. It is directed to extension not to restriction, as remarked by Judge Crane in Resigno v. F. Jarka Co., 248 N. Y. 225, 242. Then it is argued that the grant of jurisdiction to the Court of the District in which the defendant employer resides or has his principal office, without granting a proceeding in rem in the case of tramp steamers from abroad, shows that seamen on a foreign vessel were not contemplated. But the question is not whether they were thought of for the purpose of inclusion, but whether they were intentionally excluded from a description that on its face includes them. The express mention of them in sections as to the payment of wages does not help the respondent since that is a domestic matter of contract that, unless mentioned, might be \"left to the parties concerned. See Jackson v. S. S. Archimedes, 275 U. S. 463, 467. Perhaps it would be a sufficient answer to the objections that, while the § 33 is construed to give the rights of seamen to stevedores, it does not say or mean that, stevedores are to be regarded as seamen on the particular vessel upon which for the moment they happen to be at work. They simply are given the rights of seamen and, as they are American workmen, they have the rights of American seamen as well on German as on American ships. But we may go further. Here we are dealing with the conduct of persons within the jurisdiction affecting the safety of other persons within it. If the rule is wise there is no reason why it should not be universal. Wise or not, it" } ]

[ { "docid": "11954280", "title": "", "text": "extending lo seamen employed on an American owned vessel, but also to American stevedores (having the rights of seamen) when working on a. foreign vessel while in a port of the United States. He enlarged but did not limit the rights of seamen. But it is said that many of the sections of chapter 18 of the United States Code contain “minute details of internal management with attendant penalties prescribed for nonobservance,” and that it “would be wrong to subject a ship’s master to two sets of different rules propounded by two nations on such subjects.” The same thing might have been said about many of the provisions of chapter 322 of the Act of 1872 whore the statutory definition of “Seamen” first appeared and of most of title 53 of the Revised Statutes where the definition was continued by section 4612. So far as such an objection may have force, it is enough to say that matters of “internal management” are not involved in an action by a seaman to recover damages for injuries suffered through the negligence of the shipowner. A similar contention was made in Uravie v. Jarka, supra, to defeat the action by an American stevedore for injuries suffered while at work in New York Harbor on a German-owned ship, but Justice Holmes answered it by saying (282 U. S. at page 240, 51 S. Ct. 111, 112, 75 L. Ed. 312): « « * * -^ye see no reason for limiting the liability for torts committed there when they go beyond the scope of discipline and private matters that do not interest the territorial power.” In the same way matters of the internal management of the Castilla, a ship of Honduran registry, might not interest the United States even if they had occurred in New York Harbor, but the right to recover damages from an American shipo.wner afforded by section 33 of the Jones Act is of vital importance to a large number of seamen signing articles for American owned ships. There ea,n be no doubt about the power of Congress to impose liability upon" }, { "docid": "11954279", "title": "", "text": "words, section 33 originated as an amendment of section 20 of the La Follette Act which was essentially an addition to title 53 of the Revised Statutes and was defined by section 4612. In view of the origin of section 33 and the background of both the Act of 1920 and the La Follette Act, we can feel no doubt that the Act of 1920 is to be road in connection with section 4612 of the Revised Statutes and that the remedies afforded by section 33 are extended to seamen employed on American owned ships — that is, to the class of seamen defined by section 4612. In Resigno v. Jarka Co., Inc., 248 N. Y. at page 232, 162 N. E. 13, Cardozo, C. J., held that the remedies were so extended and only defeated Resigno because he was not employed on an American owned vessel. Holmes, J., in Uravic v. Jarka Co., 282 U. S. at page 239, 51 S. Ct. 111, 75 L. Ed. 312, evidently regarded section 33 as not only extending lo seamen employed on an American owned vessel, but also to American stevedores (having the rights of seamen) when working on a. foreign vessel while in a port of the United States. He enlarged but did not limit the rights of seamen. But it is said that many of the sections of chapter 18 of the United States Code contain “minute details of internal management with attendant penalties prescribed for nonobservance,” and that it “would be wrong to subject a ship’s master to two sets of different rules propounded by two nations on such subjects.” The same thing might have been said about many of the provisions of chapter 322 of the Act of 1872 whore the statutory definition of “Seamen” first appeared and of most of title 53 of the Revised Statutes where the definition was continued by section 4612. So far as such an objection may have force, it is enough to say that matters of “internal management” are not involved in an action by a seaman to recover damages for injuries" }, { "docid": "11954277", "title": "", "text": "would restrict the remedies given to seamen by an act plainly intended to enlarge their rights. The proviso.of the La Follette Act which concludes the regulations for life saving introduced because of the Titanic disaster was not limited in its application to American owned vessels, but imposed new obligations upon foreign shipowners. This proviso (38 Stat. 1170 [46 USCA § 481]) required “that foreign vessels leaving ports of the United States shall comply with the rules herein prescribed as to life-saving appliances, their equipment, and the manning of same.” It is to be noted, however, that the proviso did not narrow the obligations of American shipowners, but extended the new requirements for life saving to foreign vessels clearing from our ports. Section 20 of the La Follette Act was intended to enlarge the exising rights of sea men by providing that in suits to recover damages for injuries “seamen” having command should not be held to be “fellow-servants with those under their authority.” In Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 S. Ct. 501, 62 L. Ed. 1171, it was held that the Seamen’s Act had imposed no liability upon the shipowner beyond tbe existing maritime obligation for maintenance and cure, tlia't, if ihe vessel was seaworthy, it could make no difference whether injuries arose through the acts of a fellow servant, for the liability for maintenance and cure did not depend on proof of negligence, but was absolute. In view of the sudden growth of shipping after the war, Congress passed the Act of 1920 (41 Stat. 988) to provide for the promotion and maintenance of an American merchant marine. This act contained new provisions for documentation, transfer, and mortgaging of vessels, and, like the Act of 1915, contained amendments of portions of title 53 of the Revised Statutes in aid of seamen. At the very end it amended section 20 of the La Follette Act by section 33 (46 TUSCA § 688) so as to avoid the Chelentis decision and to give seamen all the remedies for injuries afforded to railroad employees. In other" }, { "docid": "11954275", "title": "", "text": "carried into the Revised Statutes of 1878 as “Title LIII Merchant Seamen,” the final sections of which contained the definitions to be used “In the Construction of this Title.” Title 53 comprehended the.then existing statutes relating to seamen. The American Seámen’s Act of 1915, 38 Stat. 1164 (known as the La Follette Act) amended many sections of title 53 in the interest of seamen, for example, section 4516 (46 USCA § 569), relating to desertion; sections 4529 and 4530 (46 USCA §§°596, 597 and note), relating to payment of seamen’s wages; section 4559 (46 USCA § 656), relating to complaints by the officers or a majority of the crew as to the condition of a vessel; section 4596 (46 USCA § 701), relating to punishments of offenses by sailors; and section 4611 (46 USCA § 712), abolishing flogging. It also amended section 2 of the Act to amend the Laws relating to Navigation, approved March 3, 1897 (46 USCA § 80); section 10 of chapter 121 of the Laws of 1884 'as amended by section 3 of chapter 421 of the Laws of 1886 (46 USCA § 599 and note); sections 16 and 23 of the Act to amend the Laws relating to American Seamen, approved December 21, 1898 (46 USCA §§ 683, 713). The motive of the La Follette Act was primarily humanitarian, and it was entitled “An Act to promote the welfare of American seamen. * * * ” The foregoing amendments which were its most important features amplified existing statutes for the benefit of seamen and in effect carried into title 53 of the Revised Statutes enlarged remedial provisions. Surely, when section 4612 had long defined who were seamen within the meaning of title 53, its definitions still applied to the amended sections, included in the La Fol-lette Act, in the same way they applied to the sections of title 53 before any amendments were adopted. Not only is this so because the amendments were of numerous sections of a single title (53) in which the definitions of section 4612 were controlling, but because any other construction" }, { "docid": "11954278", "title": "", "text": "S. Ct. 501, 62 L. Ed. 1171, it was held that the Seamen’s Act had imposed no liability upon the shipowner beyond tbe existing maritime obligation for maintenance and cure, tlia't, if ihe vessel was seaworthy, it could make no difference whether injuries arose through the acts of a fellow servant, for the liability for maintenance and cure did not depend on proof of negligence, but was absolute. In view of the sudden growth of shipping after the war, Congress passed the Act of 1920 (41 Stat. 988) to provide for the promotion and maintenance of an American merchant marine. This act contained new provisions for documentation, transfer, and mortgaging of vessels, and, like the Act of 1915, contained amendments of portions of title 53 of the Revised Statutes in aid of seamen. At the very end it amended section 20 of the La Follette Act by section 33 (46 TUSCA § 688) so as to avoid the Chelentis decision and to give seamen all the remedies for injuries afforded to railroad employees. In other words, section 33 originated as an amendment of section 20 of the La Follette Act which was essentially an addition to title 53 of the Revised Statutes and was defined by section 4612. In view of the origin of section 33 and the background of both the Act of 1920 and the La Follette Act, we can feel no doubt that the Act of 1920 is to be road in connection with section 4612 of the Revised Statutes and that the remedies afforded by section 33 are extended to seamen employed on American owned ships — that is, to the class of seamen defined by section 4612. In Resigno v. Jarka Co., Inc., 248 N. Y. at page 232, 162 N. E. 13, Cardozo, C. J., held that the remedies were so extended and only defeated Resigno because he was not employed on an American owned vessel. Holmes, J., in Uravic v. Jarka Co., 282 U. S. at page 239, 51 S. Ct. 111, 75 L. Ed. 312, evidently regarded section 33 as not only" }, { "docid": "11954276", "title": "", "text": "3 of chapter 421 of the Laws of 1886 (46 USCA § 599 and note); sections 16 and 23 of the Act to amend the Laws relating to American Seamen, approved December 21, 1898 (46 USCA §§ 683, 713). The motive of the La Follette Act was primarily humanitarian, and it was entitled “An Act to promote the welfare of American seamen. * * * ” The foregoing amendments which were its most important features amplified existing statutes for the benefit of seamen and in effect carried into title 53 of the Revised Statutes enlarged remedial provisions. Surely, when section 4612 had long defined who were seamen within the meaning of title 53, its definitions still applied to the amended sections, included in the La Fol-lette Act, in the same way they applied to the sections of title 53 before any amendments were adopted. Not only is this so because the amendments were of numerous sections of a single title (53) in which the definitions of section 4612 were controlling, but because any other construction would restrict the remedies given to seamen by an act plainly intended to enlarge their rights. The proviso.of the La Follette Act which concludes the regulations for life saving introduced because of the Titanic disaster was not limited in its application to American owned vessels, but imposed new obligations upon foreign shipowners. This proviso (38 Stat. 1170 [46 USCA § 481]) required “that foreign vessels leaving ports of the United States shall comply with the rules herein prescribed as to life-saving appliances, their equipment, and the manning of same.” It is to be noted, however, that the proviso did not narrow the obligations of American shipowners, but extended the new requirements for life saving to foreign vessels clearing from our ports. Section 20 of the La Follette Act was intended to enlarge the exising rights of sea men by providing that in suits to recover damages for injuries “seamen” having command should not be held to be “fellow-servants with those under their authority.” In Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38" }, { "docid": "22197529", "title": "", "text": "The bill was accordingly amended in its progress through the House by declaring the exception. There can be little doubt that Congress did this in the belief that under the statutes then in force master and crew alike were already adequately protected in case of injury or death. The belief had a sound foundation in the act of 1920. Cf. Nogueira v. N. Y., N. H. & H. R. Co., supra, at p. 134. In reaching the opposite conclusion, the Supreme Court of Missouri rested its opinion on § 713 of Title 46, c. 18 of the U. S. Code, which for the purpose of construction defines a master and a seaman as well as other terms. With a few verbal changes § 713 is a reenactment of § 65 of the Act of June 7, 1872 (17 Stat. 277), which was then known as § 4612 of the Revised Statutes. In the compilation of the Code some of the provisions for the protection of seamen contained in the Act of 1872 were placed in Title 46, which relates to shipping, .and particularly in Chapter 18 of that title, which relates to- “ Merchant Seamen.” They had previously been reenacted, as parts of the Revised Statutes, along with § 65. The Acts of 1915 and 1920 were placed in the same chapter and title, and were thus brought into contiguity with the sections carried over from the Act of 1872. Very clearly the change of location did not work a change of meaning. The rule of construction laid down in § 713 must be confined to those sections of the chapter which were contained in the Act of 1872, or in the equivalent provisions of the Revised Statutes, before the Code had rearranged them. The compilers of the Code were not empowered by Congress to amend existing law, and doubtless had no thought of doing so. As to that the command of Congress is too clear to be misread. 44 Stat. Part I, 1. To this it must be added that § 713, even in its relation to the sections" }, { "docid": "5516194", "title": "", "text": "this contention extends to section 4523, making void the shipment of seamen contrary to any act of Congress. This seems upheld by the amendment of section 4612 by Act Dec. 21, 1898, chapter 28, par. 23 (section 8392 of the United States Compiled Statutes, West Publishing Company). This affords a statutory construction of grave importance as follows: “In the construction of this title, every person having the command of any vessel belonging to any citizen of the United States shall he deemed to be the ‘master’ thereof; and every person (apj>rentices excepted) who shall be employed or engaged to serve in any capacity on. board the same shall be deemed and taken to be a ‘seaman’; and the term ‘vessel’ shall he understood to comprehend every description of vessel navigating on any sea or channel, lake or river, to which the provisions of this title may be applicable, and the term ’owner’ shall be taken and understood to comprehend all the several persons, if more than one, to whom! the vessel shall belong.” In the case of the Montapedia (D. C.) 14 Fed. 427, the complaint was that there was no superintendence of the agreement of shipment by a shipping commissioner. District Judge Billings held that the statute requiring this related exclusively to a ship belonging to a citizen of the United States. In United States v. Minges, 16 Fed. 657) Circuit Judge Bond held that the provisions of the statute there in question must be construed in connection with the definition afforded by section 4612, supra, and did not relate to a foreign vessel. Both of these eminent judges were widely known for their predilection for enforcement of national laws in a national sense. See, also, Grant v. United States, 58 Fed. 694, 7 C. C. A. 436. These two last cases are indictments for harboring seamen deserting from foreign vessels. See, also, United States v. Kellum (C. C.) 7 Fed. 843. There was an, attempted enforcement of a penalty for receiving greater remuneration than authorized by law for securing employment Eor seamen. It is true that the Supreme" }, { "docid": "11954281", "title": "", "text": "suffered through the negligence of the shipowner. A similar contention was made in Uravie v. Jarka, supra, to defeat the action by an American stevedore for injuries suffered while at work in New York Harbor on a German-owned ship, but Justice Holmes answered it by saying (282 U. S. at page 240, 51 S. Ct. 111, 112, 75 L. Ed. 312): « « * * -^ye see no reason for limiting the liability for torts committed there when they go beyond the scope of discipline and private matters that do not interest the territorial power.” In the same way matters of the internal management of the Castilla, a ship of Honduran registry, might not interest the United States even if they had occurred in New York Harbor, but the right to recover damages from an American shipo.wner afforded by section 33 of the Jones Act is of vital importance to a large number of seamen signing articles for American owned ships. There ea,n be no doubt about the power of Congress to impose liability upon its own citizens for acts done on the high seas or at other places outside its territorial jurisdiction. American Banana Co. v. United Fruit Co., 213 U. S. at page 356, 29 S. Ct. 511, 53 L. Ed. 826, 16 Ann. Cas. 1047. Section 33 of the Merchant Marine Act (46 USCA § 688) has done this in the case of American citizens who own ships on which seamen a,re injured through their negligence, and it seems hut a slight disregard of the symbol of foreign registry to apply an ordinary rule of torts to a shipowner who bears such an illusory shield. The question is not one of power, but of the meaning and scope of Rev. St. § 4612. The Treaty of Honduras with the United States is relied on, but it is no defense to the plaintiff’s claim. There is nothing in it to cover this ease. It is a complete answer to such a contention that Honduras is not concerned — just the same answer as the one we have quoted" }, { "docid": "11954274", "title": "", "text": "section 688 of the Code [46 USCA § 688]) because section 713 is a mere re-enactment of Rev. St. § 4612 (which was taken with immaterial modifications from section 65 of chapter 322 of the Act of 1872, 17 Stat. 277), and section 4612 defined the word “seaman” only as the term was used in chapter 322 of the Act of 1872 and in title 53 of the Revised Statutes. It is, of course, true that the United States Code is but a compilation of existing statutes having only prima facie effect, and that section 713 of title 46 can have no greater application than it had under its old designation of R. S. § 4612. But section 65 of- Chapter 322 of the Act of 1872, which contained the original statutory definition of the word “seaman,” was a section of a comprehensive act creating shipping commissioners, requiring written articles for seamen, regulating payment of their wages and mode of discharge, and containing various provisions for the protection and discipline of sailors. These enactments were carried into the Revised Statutes of 1878 as “Title LIII Merchant Seamen,” the final sections of which contained the definitions to be used “In the Construction of this Title.” Title 53 comprehended the.then existing statutes relating to seamen. The American Seámen’s Act of 1915, 38 Stat. 1164 (known as the La Follette Act) amended many sections of title 53 in the interest of seamen, for example, section 4516 (46 USCA § 569), relating to desertion; sections 4529 and 4530 (46 USCA §§°596, 597 and note), relating to payment of seamen’s wages; section 4559 (46 USCA § 656), relating to complaints by the officers or a majority of the crew as to the condition of a vessel; section 4596 (46 USCA § 701), relating to punishments of offenses by sailors; and section 4611 (46 USCA § 712), abolishing flogging. It also amended section 2 of the Act to amend the Laws relating to Navigation, approved March 3, 1897 (46 USCA § 80); section 10 of chapter 121 of the Laws of 1884 'as amended by section" }, { "docid": "13496304", "title": "", "text": "remains the question of the applicability of Jones Act, § 33. Whether this section applies at all to foreign vessels within our territorial waters has in our judgment been well discussed in Clark v. Montezuma Transp. Co., 1926 A. M. C. 954, 217 N. Y. App. Div. 172 [216 N. Y. S. 295], which case holds that it did not.” The Supreme Court affirmed Plamals v. The Pinar del Rio, 48 S. Ct. 457, 72 L. Ed. -, 1928 A. M. C. 932, limiting its finding to the ground that no right in rem was given by the Jones Act, and that action was in rem. The Pinar del Rio, therefore, was not decisive on the question presented in the ease at bar, which is brought in personam. The question here presented has been passed upon in Clark v. Montezuma Transportation Company, supra, and Resigno v. F. Jarka Co., Inc., 248 N. Y. 225, 162 N. E. 13, decided by the Court of Appeals of the state of New York May 29, 1928, both of which are actions in personam, and as Clark v. Montezuma Transportation Company, supra, has been cited with approval by oqr own Circuit Court of Appeals, and its doctrine affirmed by the state Court of Appeals, I feel constrained to hold that, while the Congress undoubtedly had power to give the remedy of the Jones Act to any seaman who is injured within the territory of our waters, irrespective of the nationality of the vessel on which the injury is received, the provisions of section 33 of the Jones Act are limited to seamen at work upon domestic vessels. If The Apurimac-Heredia v. Davies (C. C. A.) 12 F.(2d) 500—holds more than that, since no proper proof had been introduced that the law of Peru differed from the general maritime law, an award based on the latter would not be upset, I must respectfully decline to follow it, as it would appear not to be in harmony with the view of the Circuit Court of Appeals of this circuit. This court cannot make an award under" }, { "docid": "7226316", "title": "", "text": "Section 4601 imposes a penalty for harboring or secreting any seaman belonging to any vessel, knowing him to belong thereto. Section 4612 declares the word \"seaman,” as there used, to be restricted to designate a person employed or engaged to serve in any capacity other than as an apprentice on board any vessel belonging to a citizen of the United States. Now, as the persons harbored by this plaintiff in error were not employed or engaged to serve on board a vessel owned by a citizen of the United States, the case does not come within the letter of the statute, and the prosecution must fail. In this opinion we are supported by a preponderance of the authorities. In Ex parte D’Olivera, 1 Gall. 474, (decided in 1813,) Mr. Justice Story, referring to the act of 1790, says: “We are of the opinion that the act for the regulation of seamen exclusively applies to seamen engaged in merchants’ service of the United States. It may be a serious inconvenience that congress has not extended the provisions to eases of foreign seamen in foreign vessels, in compliance with that comity which it is understood many foreign nations exercise in favor or this country. Whatever may be the evil, we can only regret it. It is for another tribunal to apply the remedy.” In 1873 Mr. Attorney General Williams, in a communication to the secretary of the treasury, gave the following opinion: “The provisions of the act of 1872 relating to ‘discipline of seamen’ are nearly identical in language with, and appear to have been copied from, the provisions of the British merchant shipping act of 1854, relating to the same subject. In a case arising under the latter act, its provisions concerning that subject were held by the court of queen’s bench to have reference to British ships alone, (see Leary v. Lloyd, 3 El. & El. 178;) and I am inclined to the view that the provisions of the act of 1872, adverted to above, were intended by congress to apply only to seamen lawfully engaged for service on American" }, { "docid": "5516193", "title": "", "text": "subsequently signs before the shipping commissioner. The Case of William H. Clifford (D. C.) 165 Fed. 59, cited by the proctors for the libelants, was an action in rem to recover wages as seamen. Not only was' the voyage held to be excepted, but because the seamen refused to assist in discharging the cargo in an emergency, and left the ship, it was held to be desertion, which forfeited their right to wages. From these authorities, and othejrs which might be cited, it seems evident that this legislation, designed for the amelioration of the condition of American seamen and the advancement of American maritime commerce, providing as it does for the avoidance of shipping articles and for penalties for its neglect, must be strictly construed. Whether it applies to foreign ships and foreign seamen in American ports, as is here in issue, seems fairly debatable. It is contended for the respondents that the fifty-third title of the Revised Statutes, which includes the sections quoted supra, applies only to American ships and American seamen, and that this contention extends to section 4523, making void the shipment of seamen contrary to any act of Congress. This seems upheld by the amendment of section 4612 by Act Dec. 21, 1898, chapter 28, par. 23 (section 8392 of the United States Compiled Statutes, West Publishing Company). This affords a statutory construction of grave importance as follows: “In the construction of this title, every person having the command of any vessel belonging to any citizen of the United States shall he deemed to be the ‘master’ thereof; and every person (apj>rentices excepted) who shall be employed or engaged to serve in any capacity on. board the same shall be deemed and taken to be a ‘seaman’; and the term ‘vessel’ shall he understood to comprehend every description of vessel navigating on any sea or channel, lake or river, to which the provisions of this title may be applicable, and the term ’owner’ shall be taken and understood to comprehend all the several persons, if more than one, to whom! the vessel shall belong.” In the" }, { "docid": "7226314", "title": "", "text": "Binding that the judgment must be reversed, regardless of any conclusion to which we might; arrive concerning the points covered by tbe opinion of the circuit judge, we pass without consideral ion thereof to a question not discussed in the circuit court, but which nevertheless arises from the facts presented 'hy the record, viz. whether the harboring or secreting of seamen belonging to a foreign vessel is a violation of the statute upon which this case is founded. The nature of this question prevents application of the doctrine of waiver. We are obliged to give it consideration. Section 4601, Rev. St., was originally enacted as the fourth section of the act of July 20, 1790, entitled \"An act for the government and regulation of seamen in the merchant service.” 1 Stat. 133. In the revision it is included in the seventh chapter, entitled “Offenses and Punishments,” of title 53, entitled “Merchant Seamen.” This chapter is composed of the sections and clauses relating to offenses and punishments contained in said act of 1790; the act of September 28, 1850, (9 Stat. 515;) the act of July 27, 1866, entitled “An act to prevent the wearing of sheath knives by American seamen,” (14 Stat. 304;) and the act of June 7, 1872, entitled “An act to authorize the appointment of shipping commissioners hy the several circuit courts of the United States, to superintend the shipping and discharge of seamen engaged in merchant ships belonging to the United States, and for the further protection of seamen.” These several statutes were made to govern the conduct of American seamen within the territorial limits of the United States, and on hoard American vessels elsewhere within the admiralty and maritime jurisdiction of the United States. The title and context of each shows forth the intention of congress to make laws for the vessels and seamen of the United States; and hy section 4612 a definition of terms and rule of construction is given, which limits the application of all the provisions of these laws to cases affecting American vessels, or the owners, masters, or seamen thereof." }, { "docid": "7226315", "title": "", "text": "September 28, 1850, (9 Stat. 515;) the act of July 27, 1866, entitled “An act to prevent the wearing of sheath knives by American seamen,” (14 Stat. 304;) and the act of June 7, 1872, entitled “An act to authorize the appointment of shipping commissioners hy the several circuit courts of the United States, to superintend the shipping and discharge of seamen engaged in merchant ships belonging to the United States, and for the further protection of seamen.” These several statutes were made to govern the conduct of American seamen within the territorial limits of the United States, and on hoard American vessels elsewhere within the admiralty and maritime jurisdiction of the United States. The title and context of each shows forth the intention of congress to make laws for the vessels and seamen of the United States; and hy section 4612 a definition of terms and rule of construction is given, which limits the application of all the provisions of these laws to cases affecting American vessels, or the owners, masters, or seamen thereof. Section 4601 imposes a penalty for harboring or secreting any seaman belonging to any vessel, knowing him to belong thereto. Section 4612 declares the word \"seaman,” as there used, to be restricted to designate a person employed or engaged to serve in any capacity other than as an apprentice on board any vessel belonging to a citizen of the United States. Now, as the persons harbored by this plaintiff in error were not employed or engaged to serve on board a vessel owned by a citizen of the United States, the case does not come within the letter of the statute, and the prosecution must fail. In this opinion we are supported by a preponderance of the authorities. In Ex parte D’Olivera, 1 Gall. 474, (decided in 1813,) Mr. Justice Story, referring to the act of 1790, says: “We are of the opinion that the act for the regulation of seamen exclusively applies to seamen engaged in merchants’ service of the United States. It may be a serious inconvenience that congress has not extended the" }, { "docid": "5516195", "title": "", "text": "case of the Montapedia (D. C.) 14 Fed. 427, the complaint was that there was no superintendence of the agreement of shipment by a shipping commissioner. District Judge Billings held that the statute requiring this related exclusively to a ship belonging to a citizen of the United States. In United States v. Minges, 16 Fed. 657) Circuit Judge Bond held that the provisions of the statute there in question must be construed in connection with the definition afforded by section 4612, supra, and did not relate to a foreign vessel. Both of these eminent judges were widely known for their predilection for enforcement of national laws in a national sense. See, also, Grant v. United States, 58 Fed. 694, 7 C. C. A. 436. These two last cases are indictments for harboring seamen deserting from foreign vessels. See, also, United States v. Kellum (C. C.) 7 Fed. 843. There was an, attempted enforcement of a penalty for receiving greater remuneration than authorized by law for securing employment Eor seamen. It is true that the Supreme Court of the United States (In re The Eudora, 190 U. S. 169, 23 Sup. Ct. 821, 47 L. Ed. 1002) enforces against a foreign vessel the penalty of the act of December 21, 1898. This made it a misdemeanor to pay wages iti advance. It is not, however, apparent that this holding minifies the interpretative effect of section 4612 of the Revised Statutes, which, as we have seen, gives the statutory construction to' the title, and defines the master, seamen, and vessel which are affected by the several provisions. The section which the Supreme Court had under consideration, while making it a misdemeanor to pay wages of seamen in advance, also especially provided that it should apply as well to foreign vessels as to1 vessels of the United States. This seems the only provision of the legislation to ameliorate the condition of seamen which has such distinct application to foreign vessels. In the absence of the use of such language generally, and its expression here, by application of the familiar maxim of construction, “Expressio" }, { "docid": "11954271", "title": "", "text": "the latter to slip and fall down the stairway to his injury. The accident occurred while the vessel was on the high seas, three days out from New York and bound for Honduras. The District Court submitted the ease to the jury upon the theory that the Jones Act covered the situation because of the American domicile of the owner of the Castilla. This fact was held to bo controlling, and not to be affected by the terms of the act or of the Treaty between the United States and Honduras (45 Stat. 2618). The defendant appealed from the judgment entered upon a verdict for the plaintiff, on the ground that the Jones Act was not applicable to a seaman on a vessel of foreign registry, while she was on the high seas, that the law of Honduras applied, and that under that law the plaintiff could only recover for maintenance and cure. It attempts to sustain its position by the terms of the Treaty between the United States and Honduras, by principles of international law, and because of the objects which Congress sought to attain in the passage of the Jones Act. If defendants’ contention be sound, American owners and chartered owners of vessels can escape liability for injuries to American seamen employed on their ships by procuring registry under a foreign flag. We feel little doubt that the broad contention of the defendant that vessels of the American merchant marine are limited to those documented under the laws of the United States is not well founded. Section 33 providing the same recovery for a seaman who suffers personal injuries in the course of his employment as is given to railway employees must be read in connection with section 4612 of the TI. S. Revised Statutes, which has been carried into the United States Code as section 713 of title 46 (46 USCA § 713). It reads as follows: “In the construction of this chapter, every person having the command of any vessel belonging to any citizen of the United States shall be deemed to be the ‘master’ thereof;" }, { "docid": "11954272", "title": "", "text": "law, and because of the objects which Congress sought to attain in the passage of the Jones Act. If defendants’ contention be sound, American owners and chartered owners of vessels can escape liability for injuries to American seamen employed on their ships by procuring registry under a foreign flag. We feel little doubt that the broad contention of the defendant that vessels of the American merchant marine are limited to those documented under the laws of the United States is not well founded. Section 33 providing the same recovery for a seaman who suffers personal injuries in the course of his employment as is given to railway employees must be read in connection with section 4612 of the TI. S. Revised Statutes, which has been carried into the United States Code as section 713 of title 46 (46 USCA § 713). It reads as follows: “In the construction of this chapter, every person having the command of any vessel belonging to any citizen of the United States shall be deemed to be the ‘master’ thereof; and every person (apprentices excepted) who shall be employed or engaged to servé in any capacity on board the same shall be deemed and taken to be á ‘seaman’; and the term ‘vessel’ shall be understood to comprehend every description of vessel navigating on any sea or channel, lake or river, to which the provisions of this chapter may be applicable, and the term ‘owner’ shall be taken and understood to comprehend all the several persons, if more than one, to whom the vessel shall belong.” The foregoing section clearly defines “seaman” as any person who is employed on b.oard “any vessel belonging to any citizen of the United States,” and therefore includes the plaintiff, for the latter was employed on a vessel to which one American citizen held the legal title and of which another American citizen (the defendant) was the owner pro hae vice. But it is said that section 713 of the United States Code dbes not define those who may sue to recover for personal injuries under the Jones Act (now" }, { "docid": "11954273", "title": "", "text": "and every person (apprentices excepted) who shall be employed or engaged to servé in any capacity on board the same shall be deemed and taken to be á ‘seaman’; and the term ‘vessel’ shall be understood to comprehend every description of vessel navigating on any sea or channel, lake or river, to which the provisions of this chapter may be applicable, and the term ‘owner’ shall be taken and understood to comprehend all the several persons, if more than one, to whom the vessel shall belong.” The foregoing section clearly defines “seaman” as any person who is employed on b.oard “any vessel belonging to any citizen of the United States,” and therefore includes the plaintiff, for the latter was employed on a vessel to which one American citizen held the legal title and of which another American citizen (the defendant) was the owner pro hae vice. But it is said that section 713 of the United States Code dbes not define those who may sue to recover for personal injuries under the Jones Act (now section 688 of the Code [46 USCA § 688]) because section 713 is a mere re-enactment of Rev. St. § 4612 (which was taken with immaterial modifications from section 65 of chapter 322 of the Act of 1872, 17 Stat. 277), and section 4612 defined the word “seaman” only as the term was used in chapter 322 of the Act of 1872 and in title 53 of the Revised Statutes. It is, of course, true that the United States Code is but a compilation of existing statutes having only prima facie effect, and that section 713 of title 46 can have no greater application than it had under its old designation of R. S. § 4612. But section 65 of- Chapter 322 of the Act of 1872, which contained the original statutory definition of the word “seaman,” was a section of a comprehensive act creating shipping commissioners, requiring written articles for seamen, regulating payment of their wages and mode of discharge, and containing various provisions for the protection and discipline of sailors. These enactments were" }, { "docid": "1661644", "title": "", "text": "of 1890 was amended by the Act of February 18, 1895, which provided that when seamen were shipped by Commissioners for coastal voyages the articles need not contain some things required of foreign articles, among them, a scale of provisions. The Act of 1895 by reference to specific sections of the Revised Statutes extended additional requirements to coastal vessels which shipped their crews before Commissioners, but the section fixing a particular scale of provisions and the section giving a seaman a right to additional wages for short rations were not among them. The first sentence of Rev.Stat. § 4529 was extended to such vessels. That section was based upon § 35 of the Act of 1872, and the first sentence required that wages of seamen on voyages between Atlantic and Pacific ports be paid within two days of the termination of the agreement or upon discharge of the seamen. The penalty provisions for delay in payment were not in the first sentence and were not extended to seamen on coastal voyages. The Act of 1895 expressly provided that in all respects, except those provided for, the agreement should be regarded as one privately made and as if the seaman had been shipped without going before Commissioners. It is plain then that, as Congress approached passage of the Act of December 21, 1898, seamen on coastal vessels had no rights under the Shipping Commissioners’ Act, as amended, unless, at the election of the vessel, they were shipped before Commissioners. In that event, they had some of the rights of foreign bound seamen, but not all. Among the rights coastal seamen shipped before Commissioners did not have were the rights to a scale of provisions and to additional pay for short rations. The Act of December 21, 1898 is an agglomeration of twenty-four specific amendments of the laws relating to seamen. Among other things, the scale of provisions following § 4612 of the Revised Statutes, derived from § 68 of the Act of 1872, was amended to provide enlarged allowances. There were minor linguistic changes in § 4568 of the Revised Statutes," } ]

[ { "docid": "4229109", "title": "", "text": "and her three sons filed the present FTCA action in federal court, alleging that the physicians at the VA Hospital had committed gross negligence in failing to properly diagnose Billie McDuffee’s condition and in refusing to initially admit him for treatment. In ruling the Government’s motion to dismiss because of the six-month limitations period (between the date of mailing of the final agency denial and the date of filing of the federal court complaint), the district court noted a split of authority “as to whether such a period is six months or six months and one day.” Only if the latter construction were applied would plaintiffs’ FTCA complaint be timely. Describing these differing interpretations as raising “a hypertechnical issue of procedure,” the district court declined to apply the stricter view given that no definitive or correct way of counting days under the limitations statute had been established at the time of plaintiffs’ filings. Accordingly, it offended the court’s “notions of fair play” to bar the McDuffees from presenting the merits of their negligence claim in federal court. It is true that there has been some difference of view among the district judges on this subject. Compare Bledsoe v. Dept. of Housing and Urban Development, 398 F.Supp. 315 (E.D.Pa.1975) and Rodriguez v. United States, 382 F.Supp. 1 (D.P.R.1974) with Murray v. United States Postal Service, 569 F.Supp. 794 (N.D.N.Y.1983) and Yedwab v. United States, 489 F.Supp. 717 (D.N.J.1980). The more recent district court cases reject the theory allowing an extra day beyond the six month “anniversary” date. The Government’s briefing below apparently neglected to call to the attention of the district judge a First Circuit opinion that had already answered this question in its favor some years prior to the events under consideration. Kollios v. United States, 512 F.2d 1316 (1st Cir.1975). In that case the court said: Appellants’ administrative claims were denied by letter dated July 23,1973. The district court applied the so-called “modern doctrine” for the computation of the six-month period, excluding the initial or trigger day and including the last day of the period. Using this method of" } ]

[ { "docid": "14467080", "title": "", "text": "the first day of the second month. Accordingly, the last day of the sixth month is April 26 — not April 27— and an action commenced after April 26 is not commenced “within six months after the date of mailing” within the meaning of § 2401(b). Thus when plaintiff served process on the United States Attorney on April 27th, the period for commencing this action had already expired. Murray next contends that Rule 15(c) permits the relation back of an amendment if service of process was effected within a reasonable amount of time after the timely filing of the complaint. In opposition to this contention, the government has produced an impressive array of cases in which it was held that the amendment to substitute the “United States” for the incorrectly named defendant could not relate back to the time of filing. In each case the complaint had been timely filed, but notice to the United States, by service of process, occurred after expiration of the statute of limitations. E.g., Hughes v. United States, 701 F.2d 56 (7th Cir.1982); Murray v. United States Postal Service, 550 F.Supp. 1211 (D.Mass.1982); Stewart v. United States, 503 F.Supp. 59 (N.D.Ill.1980) aff’d, 655 F.2d 741 (7th Cir.1980); Lomax v. United States, 155 F.Supp. 354 (E.D.Pa.1957). The Second Circuit, however, has expressly rejected the rigid interpretation of Rule 15(c) that governed the cases cited by the defendant. Ingram v. Kumar, 585 F.2d 566 (2d Cir.1978). In Ingram, the plaintiff had filed a timely complaint of medical malpractice, but had mistakenly identified the defendant as “Vijay S. Kumar” instead of “Vijaya N. Kumar”. After the statute of limitations had expired, Ingram learned of the mistake, served process on the correct defendant, and moved to amend the complaint to change the named defendant. The issue there, as here, was whether the amended complaint could relate back to the time of filing, even though service of process had not been effected until after the period for commencement of the action had expired. Facing the problem directly, the Second Circuit held that: ... under Rule 15(c) the period within which" }, { "docid": "12407100", "title": "", "text": "in Rule 6(a) of the Federal Rules of Civil Procedure. The modern doctrine has been widely adopted by federal courts in interpreting federal statutes of limitations. See Gervais v. United States, 865 F.2d 196, 197 (9th Cir.1988) (six-month limitations period under Federal Tort Claims Act (FTCA) statute of limitations ends on six-month anniversary date of mailing of denial of claim); Maahs v. United States, 840 F.2d 863, 866-67 (11th Cir.1988) (“joining the majority of circuits that have dealt with this issue,” Rule 6(a) applies to FTCA statute of limitations; general policy is that Rule 6(a) applies to federal statutes enacted or amended after promulgation of the rule ); Monkelis v. Mobay Chemical, 827 F.2d 937, 938 (3d Cir.1987) (“In determining the final date of the limitations period, we follow the method of calculation used in Fed.R.Civ.P. 6(a) at least in nondiversity cases.”); Tribue v. United States, 826 F.2d 633, 635 (7th Cir.1987) (FTCA six-month limitations period runs from the day after the triggering event occurs through the day before the same calendar date six months later, i.e., ends on anniversary date or, in some cases, one day after ); In re Gotham Provision Co., 669 F.2d 1000, 1014 (5th Cir.) (“[t]his court has consistently used Rule 6(a)’s method for computing federal statutory time limitations”) (citing Lawson v. Conyers Chrysler, Plymouth, & Dodge Trucks, Inc., 600 F.2d 465, 466 (5th Cir. 1979) (holding that Truth in Lending Act’s one-year statute of limitations begins to run on day after triggering event and ends on one-year anniversary of date of triggering event)), cert, denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982); Kollios v. United States, 512 F.2d 1316, 1317 (1st Cir.1975) (Kollios) (under “modern doctrine,” computation of six-month statute of limitations under FTCA excludes initial or trigger day and includes last day of six-month period, i.e., anniversary date); Winters v. United States Postal Service, 721 F.Supp. 1388, 1389 n. 2 (D.D.C.1989) (noting that courts are in agreement that six-month limitation period under the FTCA begins to run the day after the triggering event, but are split as to whether the" }, { "docid": "14648286", "title": "", "text": "the action was incorrect; Vernell had in fact taken the necessary steps to amend the complaint to name the United States as a defendant. B. Although the district court erroneously ruled that Vernell had never sought leave to amend her complaint, we take note of an issue which we must address sua sponte: whether service of the complaint was made in a timely manner. If Vernell’s filing of the complaint was not done in a timely manner under the FTCA, the district court had no jurisdiction to hear the case. See Charlton v. United States, 743 F.2d 557, 558 (7th Cir.1984); cf. United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1357 (5th Cir.1972) (noting that statute of limitations in connection with the Tucker Act should be construed strictly since waiver of governmental immunity involved; district court lacks jurisdiction when requirements not complied with). Jurisdiction is a matter which must be examined sua sponte if necessary. Huff v. International Longshoremen’s Association, Local No. 4, 799 F.2d 1087, 1088 (5th Cir.1986). Whether or not Vernell’s complaint is timely depends upon whether service of the complaint was made within the six month statute of limitations period for the FTCA. See 28 U.S.C. § 2401(b). The Postal Service mailed a letter notifying Vernell of the denial of her administrative claim on January 12, 1984. The United States Attorney accepted service of the summons and the complaint on July 13. In actions brought under the FTCA, most courts have held that unless the United States receives actual notice within the six month statutory period after denial of the administrative claim, the United States cannot thereafter be substituted as the correct party under Fed.R.Civ.P. 15(c). Carr v. Veterans Administration, 522 F.2d 1355, 1357-58 (5th Cir.1975). See also Allen, 749 F.2d at 1389-90; Hughes v. United States, 701 F.2d 56, 58 (7th Cir.1982) (per curiam). But see Murray v. United States Postal Service, 569 F.Supp. 794, 796 (N.D.N.Y.1983). It is clear that the six month limitations period in this case began on January 13, the day after the notice from the Postal Service" }, { "docid": "3800239", "title": "", "text": "mail, of notice of final denial of the claim by the agency to which it was presented.” The limitations period in § 2401(b) cannot be extended for equitable considerations. Anderberg v. United States, 718 F.2d 976, 977 (10th Cir.1983), cert. denied, 466 U.S. 939, 104 S.Ct. 1916, 80 L.Ed.2d 463 (1984); Tuttle v. United States Postal Service, 585 F.Supp. 55 (M.D.Pa.1983), aff’d without published opinion, 735 F.2d 1351 (3d Cir.1984). Failure to comply with the six-month requirement divests a district court of jurisdiction to entertain the claim. Charlton v. United States, 743 F.2d 557, 558 (7th Cir.1984). The Seventh Circuit has not faced the question of how exactly to compute the six-month time limit. It has, however, indicated its view twice in dicta. In Hughes v. United States, 701 F.2d 56 (7th Cir.1982), the FTCA claim was denied by the agency on November 14, 1980. The plaintiffs in that case filed suit on May 13, 1981, but they did not (as required) name the United States as a party defendant. On appeal, the question was whether the amendment (several months after the complaint was filed) to add the United States could relate back and be timely. In deciding it could not, the court stated that “the plaintiffs in this case waited to file their complaint until the last day of the limitations period, May 13,1981____” Id. at 58-59. See also Stewart v. United States, 655 F.2d 741 (7th Cir.1981) (in deciding exactly the same issue as presented in Hughes, court describes March 26, 1980 as the “last day of the limitations period” where the letter of denial was mailed September 27, 1980). Though the Seventh Circuit did not explain its reasoning, the dates involved in Hughes and Stewart ■ make clear that it figured the last day of the six-month period by counting six months from the month in which the denial letter was mailed and then subtract one from the day of the month on which the letter was mailed. By that method, the last day for plaintiff in this case was October 29, 1985 — October is the" }, { "docid": "16719226", "title": "", "text": "PER CURIAM: 1 Edwards appeals the dismissal of her tort suit against the United States, claiming the statute of limitations has not barred her action. Because her claim against the government relates back to an action brought against the allegedly negligent agent and agency in which service of ° ° ,. f . / „ ,.TT , a summons directed to the United States £ » . „ „„ , , ,, TT ., , of America was effected upon the United 0. , ,,, ,, ., ,. States Attorney within the limitation period we vacate ^ dismisgal order and ^ , » » ,, ,. for further proceedings. Edwards claims that an unattended post-al vehicle rolled into her car, injuring her and causing damages to the vehicle. She l-ded an administrative claim, but was denled relief on February 28,1983. Notice of denial was mailed the same daY- Under 28 U.S.C. § 2401(b), she had six months from the day after this notice was mailed to bring suit against the United States. The parties stipulated that the statute of limitations expired on September 1, 1983. We acCept the stipulation and do not decide whether the limitations period expired on August 31 or September 1. See Murray v. United States Postal Service, 569 F.Supp. 794, 795-96 (N.D.N.Y.1983). A , nn 1AOO , On August 26, 1983, Edwards filed a , . , , ., „ , . „ , ■ complaint under the Federal Tort Claims . , . ., TT , Act (FTCA), naming the United States Postal Service and the driver of the postal vehicle, Sutton, as defendants. Summonses were issued to the named defendants and also to the Attorney General of the United States and the United States of . . , „„ „ America on August 29, 1983. Service was made on August 29, 1983 on the United Slates Postmaster, and on Sutton. The United States Attorney for the Western District of Louisiana accepted service of the process addressed to the “United States of America” on August 30, 1983. No document appears in the reconstructed record of" }, { "docid": "14467079", "title": "", "text": "when it ended. After determining that the period began on February 5, 1973 the court concluded, without explaining its calculation, that the period ended on August 6,1973. It may well be that the court was following the method articulated in Bledsoe and Rodriguez. However, it is equally likely that the court followed the method described in Yedwab, tentatively calculated that the last day for commencing suit was Saturday, August 4 (or possibly Sunday, August 5), and then extended the deadline to Monday August 6, pursuant to Rule 6(a), Fed.R.Civ.P. In either event, Carr simply does not address the question before this Court and affords no weight to either party’s argument. Although the method employed in Bledsoe and Rodriguez is commended by its liberality, the Court concludes that the method employed in Yedwab is mandated by the language and logic of § 2401. As stated previously, the limitation period began to run on the day following mailing: October 27th. The last day of the first month is therefore November 26, and not November 27, which is the first day of the second month. Accordingly, the last day of the sixth month is April 26 — not April 27— and an action commenced after April 26 is not commenced “within six months after the date of mailing” within the meaning of § 2401(b). Thus when plaintiff served process on the United States Attorney on April 27th, the period for commencing this action had already expired. Murray next contends that Rule 15(c) permits the relation back of an amendment if service of process was effected within a reasonable amount of time after the timely filing of the complaint. In opposition to this contention, the government has produced an impressive array of cases in which it was held that the amendment to substitute the “United States” for the incorrectly named defendant could not relate back to the time of filing. In each case the complaint had been timely filed, but notice to the United States, by service of process, occurred after expiration of the statute of limitations. E.g., Hughes v. United States, 701 F.2d" }, { "docid": "12407102", "title": "", "text": "period ends on the six-month anniversary date or one day after); Murray v. United States Postal Service, 569 F.Supp. 794, 796 (N.D.N.Y.1983) (Murray) (limitation period under FTCA began to run the day after the mailing of the agency notice and ended on six-month anniversary date); Yedwab v. United States, 489 F.Supp. 717, 719 (D.N.J. 1980) (Yedwab) (FTCA statute of limitations, “like Rule 6(a), excludes the day of the event and includes the last day of the specified period”). By contrast, Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir.1980), cited by the majority, is the only case interpreting a federal statute of limitations so that the limitation period expires on the day before the pertinent anniversary date. The majority opinion also rejects McDuffee v. United States, 769 F.2d 492 (8th Cir.1985) (McDuffee), involving the six-month statute of limitations under the FTCA, as support in this circuit for the modern doctrine. I agree that McDuffee, strictly limited to its holding, merely rejects an “anniversary date plus one” rule. However, when read in its entirety, I believe that McDuffee certainly favors application of the modern doctrine. We stated in McDuffee “[w]e have no doubt that Mur ray, Yedwab, and Kollios, are correct.” Id. at 494. As we recognized in McDuffee, each of those cases applied the modern doctrine and held that the six-month statute of limitations under the FTCA ends on the six-month anniversary date. In fact, our statement of agreement with Murray, Yedwab, and Kollios directly followed this quote from Kollios: Appellants’ administrative claims were denied by letter dated July 23,1973. The district court applied the so-called “modern doctrine” for the computation of the six-month period, excluding the initial or trigger day and including the last day of the period. Using this method of calculation and taking July 23 as the trigger day, it is clear that the six-month statute ended on January 23, 1974. 512 F.2d at 1316-17 (cited in McDuffee, 769 F.2d at 494). Similarly, in the present case, if the triggering event occurred on November 27, 1989, the one-year limitation period under 15 U.S.C. § 1692k(d)" }, { "docid": "8358117", "title": "", "text": "OPINION BIUNNO, District Judge. Doris Yedwab claims she was injured May 31, 1978 in a fall at a U.S. Postal Service postoffice. She and her husband now sue under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. She claims for her injuries, her husband Seymour sues per quod. Suit was begun against the “U.S. Postal Service”. This is the wrong party, and the United States is ordered substituted as defendant. Also, the complaint has a jury demand, but the demand must be stricken since jury trial is not available under the Act. This leaves the key issue raised on motion by the United States: did plaintiffs begin the action “within six months after the date of mailing” of the final denial of the agency, as required by 28 U.S.C. § 2401(b)? By F.R.Civ.P. 3, a civil action is begun “by filing a complaint with the court.” F.R.Civ.P. 5(e) defines “filing with the court” as performed by filing “with the clerk of the court”. At the hearing of the motion, photocopy of the certified mail record showed that the final denial was mailed June 21, 1979. There is no dispute of this fact. The court’s records show that the complaint was filed December 24, 1979. The briefs were largely directed to the issue whether the last day of the six month period fell on Saturday, December 22, 1979, and whether F.R.Civ.P. 6(a) applies so as to make December 24 the last day for filing. Reliance is placed on Rodriguez v. U. S., 382 F.Supp. 1 (D.Puerto Rico, 1974), and Bledsoe v. Dept. of HUD, 398 F.Supp. 315 (D.Pa., 1975) for the proposition that in calculating a time period, the day of the act or event from which the designated period begins to run shall not be included. The last day of the period is included unless it is a Saturday, Sunday or legal holiday, in which case the period runs until the end of the next day which is not a dies non. This is the expression of Rule 6(a). Rodriguez made an incorrect calculation of the six" }, { "docid": "14648288", "title": "", "text": "was mailed to Vernell. See Edwards, 755 F.2d at 1156 (“Under 28 U.S.C. § 2401(b), [plaintiff] had six months from the day after this notice was mailed to bring suit against the United States.”) It is unclear, however, whether the six month limitation period ended on July 12 or July 13. In Edwards the court explicitly reserved the question now before us: does the limitations period run from the day after mailing through the day before the same calendar date six months later, or does the limitations period run from the day after mailing through the same calendar date six months later. Id. Four courts have followed the first method: McDuffee v. United States, 769 F.2d 492, 494 (8th Cir.1985); Kollios v. United States, 512 F.2d 1316, 1316-17 (1st Cir.1975); Murray v. United States, 569 F.Supp. 794, 796 (N.D.N.Y.1983); and Yedwab v. United States, 489 F.Supp. 717, 718-20 (D.N.J.1980). Two courts have followed the second method: Bledsoe v. Dept. of Housing and Urban Development, 398 F.Supp. 315, 318-21 (E.D.Pa.1975), and Rodriguez v. United States, 382 F.Supp. 1, 2 (D.P.R.1974). We are of the opinion that the majority rule as expressed in McDuffee and Kollios is the better reasoned rule and should be adopted. Accordingly, we hold that the limitations period runs from the day after the denial of a plaintiffs administrative claim is mailed through the day before that same calendar date six months later. We so conclude because, first, waivers of sovereign immunity such as those embodied in the FTCA are to be strictly construed in favor of the government. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979). See also Goff v. United States, 659 F.2d 560, 561 (5th Cir. Unit A Oct. 1981); Carr, 522 F.2d at 1357. The limitations period in section 2401(b) cannot be extended for equitable considerations. Childers v. United States, 442 F.2d 1299, 1303 (5th Cir.), cert. denied, 404 U.S. 857, 92 S.Ct. 104, 30 L.Ed.2d 99 (1971); see also Anderberg v. United States, 718 F.2d 976, 977 (10th Cir.1983), cert. denied, 466 U.S. 939, 104" }, { "docid": "3800242", "title": "", "text": "other case to use this method was Rodriguez v. United States, 382 F.Supp. 1 (D.P.R.1974) (mailed December 29, 6 months expired June 30) , though it was apparently assumed in dicta in Carr v. Veterans Administration, 522 F.2d 1355, 1357 (5th Cir.1975) (“Limitations began to run on the date of mailing, February 5, and ran on August 6, 1973”). In the more recent cases, the Bledsoe method has been rejected as in effect rewriting the statute to allow six months plus one day. These more recent cases use yet a third method, which is the same as that referred to by the Seventh Circuit except that the first day is not counted pursuant to Fed.R.Civ.P. 6(a). This method (and the error in the Bledsoe method) was best explained in Yedwab v. United States, 489 F.Supp. 717, 719 (D.N.J.1980) (emphasis in original): To. display the simplicity of the calculation, the court appends a 1979 calendar. Suppose the mailing date were the last day of a month, say, January 31, 1979, a Wednesday. That day would be excluded. A claimant would have the six month period after January 31 within which to begin an action by filing a complaint with the clerk of the court. This full six month period would embrace the months of February through July, and the last day (which is included) of that full six month period would by July 31, 1979, a Tuesday. To allow filing on August 1, 1979 would be to allow six months and a day after January 31, 1979. This is not the statutory period. The period is “six months” after the mailing date, and the action must begin “within” that period, not outside it. Moving day by day, if a January 31 mailing sets a July 31 deadline, then a February 1 mailing sets an August 1 deadline, and so on day by day through any numbered day from 1 to 28 (to 29 in leap year). In effect, the Yedwab method is to make the anniversary date of the mailing of the denial letter the last day of the six-month period." }, { "docid": "3800241", "title": "", "text": "sixth month after the month (April) the denial letter was mailed and the 29th is the day before the day (the 30th) the letter was mailed. Plaintiff’s filing on the 31st was therefore untimely. Since both Hughes and Stewart are dicta on this issue (though, in this court’s opinion, strongly predictive dicta), the other two approaches used in other circuits are worth considering. Surprisingly, plaintiff does not mention the cases utilizing a method under which plaintiff’s complaint would be timely. In Bledsoe v. Dept. of Housing & Urban Development, 398 F.Supp. 315, 319 (E.D.Pa.1975), the letter of denial was mailed on May 23, and the court held that the last day of the six-month period was November 24. The court reached that result by two steps: (1) excluding (under Fed.R.Civ.P. 6(a)) the day the letter was mailed and- (2) taking the anniversary date of the six-month period as the last day of that period instead of regarding it, as one might more naturally conclude, as the first day of the next six-month period. The only other case to use this method was Rodriguez v. United States, 382 F.Supp. 1 (D.P.R.1974) (mailed December 29, 6 months expired June 30) , though it was apparently assumed in dicta in Carr v. Veterans Administration, 522 F.2d 1355, 1357 (5th Cir.1975) (“Limitations began to run on the date of mailing, February 5, and ran on August 6, 1973”). In the more recent cases, the Bledsoe method has been rejected as in effect rewriting the statute to allow six months plus one day. These more recent cases use yet a third method, which is the same as that referred to by the Seventh Circuit except that the first day is not counted pursuant to Fed.R.Civ.P. 6(a). This method (and the error in the Bledsoe method) was best explained in Yedwab v. United States, 489 F.Supp. 717, 719 (D.N.J.1980) (emphasis in original): To. display the simplicity of the calculation, the court appends a 1979 calendar. Suppose the mailing date were the last day of a month, say, January 31, 1979, a Wednesday. That day would be" }, { "docid": "14648289", "title": "", "text": "F.Supp. 1, 2 (D.P.R.1974). We are of the opinion that the majority rule as expressed in McDuffee and Kollios is the better reasoned rule and should be adopted. Accordingly, we hold that the limitations period runs from the day after the denial of a plaintiffs administrative claim is mailed through the day before that same calendar date six months later. We so conclude because, first, waivers of sovereign immunity such as those embodied in the FTCA are to be strictly construed in favor of the government. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979). See also Goff v. United States, 659 F.2d 560, 561 (5th Cir. Unit A Oct. 1981); Carr, 522 F.2d at 1357. The limitations period in section 2401(b) cannot be extended for equitable considerations. Childers v. United States, 442 F.2d 1299, 1303 (5th Cir.), cert. denied, 404 U.S. 857, 92 S.Ct. 104, 30 L.Ed.2d 99 (1971); see also Anderberg v. United States, 718 F.2d 976, 977 (10th Cir.1983), cert. denied, 466 U.S. 939, 104 S.Ct. 1916, 80 L.Ed.2d 463 (1984). Second, the approach we adopt today is also more consistent with the language of section 2401(b). The method used by the court in Bledsoe, which we reject, would allow six months and a day after the mailing date to file a claim. The statute, however, provides for a period of six months after the mailing date, and the action must begin within that period, not outside it. Applying the rule we adopt today to the instant case, the limitations period for Ver-nell’s action ended on July 12, 1984. Since the summons was not served on the United States Attorney until July 13, 1984, her filing is untimely and the district court had no jurisdiction to hear the case. III. For the reasons stated above, the judgment of the district court is VACATED and the case is REMANDED with instructions to dismiss Vernell’s complaint for lack of jurisdiction. VACATED and REMANDED. . The district court also dismissed the claim filed by Austin Vernell, Vernell’s husband, because he did not exhaust" }, { "docid": "3800243", "title": "", "text": "excluded. A claimant would have the six month period after January 31 within which to begin an action by filing a complaint with the clerk of the court. This full six month period would embrace the months of February through July, and the last day (which is included) of that full six month period would by July 31, 1979, a Tuesday. To allow filing on August 1, 1979 would be to allow six months and a day after January 31, 1979. This is not the statutory period. The period is “six months” after the mailing date, and the action must begin “within” that period, not outside it. Moving day by day, if a January 31 mailing sets a July 31 deadline, then a February 1 mailing sets an August 1 deadline, and so on day by day through any numbered day from 1 to 28 (to 29 in leap year). In effect, the Yedwab method is to make the anniversary date of the mailing of the denial letter the last day of the six-month period. This method is clearly the majority rule. See McDuffee v. United States, 769 F.2d 492 (8th Cir.1985), and cases cited therein. The criticism of the Bledsoe method is sound, since in ordinary parlance the anniversary of a period is regarded is the first day of the next period, not the last day of the first period. As Yedwab pointed out, “[i]f it wished to the Congress could say that action must begin no later than the last business day of the sixth month after the month in which the notice was mailed. That is not what it said.” 489 F.Supp. at 719. Using the Yedwab method plaintiffs claim is untimely by one day. Therefore, even assuming the Seventh Circuit would follow the majority method despite its own earlier dicta, plaintiff’s claim would still be held untimely. Plaintiff argues his complaint is timely under the Yedwab method apparently on the ground that where (as here) the denial letter is mailed on the last day of a month, the six-month period ends on the last day of" }, { "docid": "4229111", "title": "", "text": "calculation and taking July 23 as the trigger day, it is clear that the six-month period described by the statute ended on January 23, 1974. 512 F.2d at 1316-7. We have no doubt that Murray, Yedwab and Kollios are correct. Moreover, there is a longstanding practice of this court to follow a ruling of another circuit (“on an unsettled question of federal law”) unless “clearly convinced that it is wrong.” E.g., Homan v. United States, 279 F.2d 767, 773 (8th Cir.), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960). The judgment below is therefore reversed, with directions to enter judgment in favor of defendant for plaintiffs’ noncompliance with the six-month filing requirement of 28 U.S.C. § 2401(b). . The district court certified its ruling for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). This court thereafter ordered the matter to be regularly docketed as an appeal. . In light of this conclusion as to the six-month limitations provision, it is not necessary for the court to rule the separate question of whether the two-year limitation (between accrual of the claim and its presentation to the appropriate federal agency) would also bar a decision on the merits of plaintiffs’ tort claim. See, however, Clifford by Clifford v. United States, 738 F.2d 977, 980 (8th Cir.1984) (\"In a death case [under the Federal Tort Claims Act] ... it is fair for the claim to accrue at the time of death.”) As will be seen, more than two years elapsed between the death in question and the presentation of the claim. . Among other things, the letter advised Mrs. McDuffee that ”[i]f you are dissatisfied with our decision, you may file suit in an appropriate U.S. District Court not latér than six months after the date of mailing of this notice of denial.” . We note that it may even be argued that the Kollios rule may be too generous by one day, on a theory that the Federal Rules of Civil Procedure are not applicable to statutory time periods. See, e.g., Rust v. Quality Car Corral, Inc.," }, { "docid": "14648287", "title": "", "text": "not Vernell’s complaint is timely depends upon whether service of the complaint was made within the six month statute of limitations period for the FTCA. See 28 U.S.C. § 2401(b). The Postal Service mailed a letter notifying Vernell of the denial of her administrative claim on January 12, 1984. The United States Attorney accepted service of the summons and the complaint on July 13. In actions brought under the FTCA, most courts have held that unless the United States receives actual notice within the six month statutory period after denial of the administrative claim, the United States cannot thereafter be substituted as the correct party under Fed.R.Civ.P. 15(c). Carr v. Veterans Administration, 522 F.2d 1355, 1357-58 (5th Cir.1975). See also Allen, 749 F.2d at 1389-90; Hughes v. United States, 701 F.2d 56, 58 (7th Cir.1982) (per curiam). But see Murray v. United States Postal Service, 569 F.Supp. 794, 796 (N.D.N.Y.1983). It is clear that the six month limitations period in this case began on January 13, the day after the notice from the Postal Service was mailed to Vernell. See Edwards, 755 F.2d at 1156 (“Under 28 U.S.C. § 2401(b), [plaintiff] had six months from the day after this notice was mailed to bring suit against the United States.”) It is unclear, however, whether the six month limitation period ended on July 12 or July 13. In Edwards the court explicitly reserved the question now before us: does the limitations period run from the day after mailing through the day before the same calendar date six months later, or does the limitations period run from the day after mailing through the same calendar date six months later. Id. Four courts have followed the first method: McDuffee v. United States, 769 F.2d 492, 494 (8th Cir.1985); Kollios v. United States, 512 F.2d 1316, 1316-17 (1st Cir.1975); Murray v. United States, 569 F.Supp. 794, 796 (N.D.N.Y.1983); and Yedwab v. United States, 489 F.Supp. 717, 718-20 (D.N.J.1980). Two courts have followed the second method: Bledsoe v. Dept. of Housing and Urban Development, 398 F.Supp. 315, 318-21 (E.D.Pa.1975), and Rodriguez v. United States, 382" }, { "docid": "12407101", "title": "", "text": "later, i.e., ends on anniversary date or, in some cases, one day after ); In re Gotham Provision Co., 669 F.2d 1000, 1014 (5th Cir.) (“[t]his court has consistently used Rule 6(a)’s method for computing federal statutory time limitations”) (citing Lawson v. Conyers Chrysler, Plymouth, & Dodge Trucks, Inc., 600 F.2d 465, 466 (5th Cir. 1979) (holding that Truth in Lending Act’s one-year statute of limitations begins to run on day after triggering event and ends on one-year anniversary of date of triggering event)), cert, denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982); Kollios v. United States, 512 F.2d 1316, 1317 (1st Cir.1975) (Kollios) (under “modern doctrine,” computation of six-month statute of limitations under FTCA excludes initial or trigger day and includes last day of six-month period, i.e., anniversary date); Winters v. United States Postal Service, 721 F.Supp. 1388, 1389 n. 2 (D.D.C.1989) (noting that courts are in agreement that six-month limitation period under the FTCA begins to run the day after the triggering event, but are split as to whether the period ends on the six-month anniversary date or one day after); Murray v. United States Postal Service, 569 F.Supp. 794, 796 (N.D.N.Y.1983) (Murray) (limitation period under FTCA began to run the day after the mailing of the agency notice and ended on six-month anniversary date); Yedwab v. United States, 489 F.Supp. 717, 719 (D.N.J. 1980) (Yedwab) (FTCA statute of limitations, “like Rule 6(a), excludes the day of the event and includes the last day of the specified period”). By contrast, Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir.1980), cited by the majority, is the only case interpreting a federal statute of limitations so that the limitation period expires on the day before the pertinent anniversary date. The majority opinion also rejects McDuffee v. United States, 769 F.2d 492 (8th Cir.1985) (McDuffee), involving the six-month statute of limitations under the FTCA, as support in this circuit for the modern doctrine. I agree that McDuffee, strictly limited to its holding, merely rejects an “anniversary date plus one” rule. However, when read in its entirety," }, { "docid": "3800244", "title": "", "text": "This method is clearly the majority rule. See McDuffee v. United States, 769 F.2d 492 (8th Cir.1985), and cases cited therein. The criticism of the Bledsoe method is sound, since in ordinary parlance the anniversary of a period is regarded is the first day of the next period, not the last day of the first period. As Yedwab pointed out, “[i]f it wished to the Congress could say that action must begin no later than the last business day of the sixth month after the month in which the notice was mailed. That is not what it said.” 489 F.Supp. at 719. Using the Yedwab method plaintiffs claim is untimely by one day. Therefore, even assuming the Seventh Circuit would follow the majority method despite its own earlier dicta, plaintiff’s claim would still be held untimely. Plaintiff argues his complaint is timely under the Yedwab method apparently on the ground that where (as here) the denial letter is mailed on the last day of a month, the six-month period ends on the last day of the month six months hence. Since the denial letter was mailed on the last day of April (the 30th), plaintiff concludes his filing on the last day of October (the 31st) was timely. That is clearly not what the Yedwab court held, as above quotations show. Indeed, plaintiff’s method would suffer from exactly the same defect as Yedwab criticized the Bledsoe method for — it makes the statutory period six months plus one (or even two) days. Missing the chance to present what may be a meritorious claim because the filing deadline was missed by one day no doubt seems harsh, but as the above cases make clear, the six-month requirement must be strictly construed and this court has no power to extend it. Six months is certainly enough time to initiate suit, and this court is mystified by plaintiff’s (or his lawyer’s) decision to wait until what he thought was the last day for filing. Having made that decision, plaintiff (or his lawyer) must abide by the consequences. IT IS THEREFORE ORDERED that defendant’s" }, { "docid": "14467077", "title": "", "text": "of the original pleading because notice of the claim, i.e., service of process, was not given to it within the limitations period of the Federal Tort Claims Act, as set forth in 28 U.S.C. § 2401(b). Murray advances three alternative arguments to the contrary: (1) service of process was effected within the limitations period of § 2401(b); (2) Rule 15(c) implicitly includes a reasonable time for service of process after the expiration of the limitation period; (3) her attorney’s telephone call to the United States Attorney’s Office constituted timely notice to the defendant under Rule 15(c). The first task of the Court is to ascertain the last date on which Murray could have commenced this action — a point of contention between the parties. 28 U.S.C. § 2401(b) provides that: a tort claim against the United States shall be forever barred ... unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. In this case the agency mailed the notice on October 26, 1982. In accordance with Rule 6(a), Fed.R.Civ.P., the limitation period began to run on the following day, October 27th. The dispute here is whether the statutory six-month period ends on April 26th or includes April 27th. There is a split of authority as to the proper method for calculating the expiration of this statutory period. Compare Yedwab v. United States, 489 F.Supp. 717 (D.N.J.1980) (period runs from the day after mailing to the day before the same calendar date six months later) with Bledsoe v. Department of Housing & Urban Development, 398 F.Supp. 315 (E.D.Pa.1975) and Rodriguez v. United States, 382 F.Supp. 1 (D.P.R.1974) (period runs from the day after mailing up to and including the same calendar date six months later). Contrary to plaintiff’s contention, the Court does not believe that the question was resolved in the Fifth Circuit by Carr v. Veterans Administration, 522 F.2d 1355 (1975). In Carr, the court was focusing on when the period under § 2401(b) began, not" }, { "docid": "12407103", "title": "", "text": "I believe that McDuffee certainly favors application of the modern doctrine. We stated in McDuffee “[w]e have no doubt that Mur ray, Yedwab, and Kollios, are correct.” Id. at 494. As we recognized in McDuffee, each of those cases applied the modern doctrine and held that the six-month statute of limitations under the FTCA ends on the six-month anniversary date. In fact, our statement of agreement with Murray, Yedwab, and Kollios directly followed this quote from Kollios: Appellants’ administrative claims were denied by letter dated July 23,1973. The district court applied the so-called “modern doctrine” for the computation of the six-month period, excluding the initial or trigger day and including the last day of the period. Using this method of calculation and taking July 23 as the trigger day, it is clear that the six-month statute ended on January 23, 1974. 512 F.2d at 1316-17 (cited in McDuffee, 769 F.2d at 494). Similarly, in the present case, if the triggering event occurred on November 27, 1989, the one-year limitation period under 15 U.S.C. § 1692k(d) should have ended on November 27, 1990, the date the complaint was filed. I would therefore reverse the judgment of the district court insofar as it dismisses Mattson’s claims arising out of the letter dated November 27, 1989. . 28 U.S.C. § 2401(b) provides: 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 or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. . Rule 6(a) was adopted in 1937; 15 U.S.C. § 1692d(k) was enacted in 1977 and became effective in 1978. . Under this rule, the limitations period will always end on the anniversary date, unless the triggering event occurred on the last day of the month, in which case, the limitations period may end one day after the anniversary date. Tribue v. United States, 826 F.2d 633, 635" }, { "docid": "14467078", "title": "", "text": "In this case the agency mailed the notice on October 26, 1982. In accordance with Rule 6(a), Fed.R.Civ.P., the limitation period began to run on the following day, October 27th. The dispute here is whether the statutory six-month period ends on April 26th or includes April 27th. There is a split of authority as to the proper method for calculating the expiration of this statutory period. Compare Yedwab v. United States, 489 F.Supp. 717 (D.N.J.1980) (period runs from the day after mailing to the day before the same calendar date six months later) with Bledsoe v. Department of Housing & Urban Development, 398 F.Supp. 315 (E.D.Pa.1975) and Rodriguez v. United States, 382 F.Supp. 1 (D.P.R.1974) (period runs from the day after mailing up to and including the same calendar date six months later). Contrary to plaintiff’s contention, the Court does not believe that the question was resolved in the Fifth Circuit by Carr v. Veterans Administration, 522 F.2d 1355 (1975). In Carr, the court was focusing on when the period under § 2401(b) began, not when it ended. After determining that the period began on February 5, 1973 the court concluded, without explaining its calculation, that the period ended on August 6,1973. It may well be that the court was following the method articulated in Bledsoe and Rodriguez. However, it is equally likely that the court followed the method described in Yedwab, tentatively calculated that the last day for commencing suit was Saturday, August 4 (or possibly Sunday, August 5), and then extended the deadline to Monday August 6, pursuant to Rule 6(a), Fed.R.Civ.P. In either event, Carr simply does not address the question before this Court and affords no weight to either party’s argument. Although the method employed in Bledsoe and Rodriguez is commended by its liberality, the Court concludes that the method employed in Yedwab is mandated by the language and logic of § 2401. As stated previously, the limitation period began to run on the day following mailing: October 27th. The last day of the first month is therefore November 26, and not November 27, which is" } ]

[ { "docid": "3020697", "title": "", "text": "at 348). We accord due deference to the district court’s determination as to the reliability of the hearsay evidence, and review that ruling only for an abuse of discretion. Johnson, 997 F.2d at 254. Only if a defendant “show[s] that the information before the court was inaccurate, and that the court relied on it” can he successfully challenge his sentence. Id; United States v. Musa, 946 F.2d 1297, 1306 (7th Cir.1991). In this case, the district court found that Agent Holston’s hearsay testimony was reliable. Agent Holston’s testimony concerning the quantity of drugs attributable to Francis’s group was corroborated by the summary record of the group’s Western Union money transfers between June and November 1992. ' The summary record established that Francis and his co-conspirators transferred a total of $37,300 from Cairo to other co-conspirators in Houston. As the district court specifically noted, Francis personally transferred $14,000 to Houston. Given the rate of $1,000 per one ounce of crack cocaine' in Houston, the group’s money transfers would translate into approximately 1,050 grams of crack cocaine. Additionally, Judge Gilbert was the presiding judge at the co-defendants’ trial, and had the opportunity to hear the evidence from which Agent Holston drew his hearsay testimony. See Tolson, 988 F.2d at 1497 (a trial judge has “the best ‘opportunity to observe the verbal and nonverbal behavior of the witnesses focusing on the subject’s reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture and body movements,’ as well as confused or nervous speech patterns in contrast with merely looking at the cold pages of an appellate record”) (quoting Churchill v. Waters, 977 F.2d 1114, 1124 (7th Cir.1992)). Because Judge Gilbert had heard the sworn testimony and cross-examinations of Francis’s co-conspirators, he was in the best position to determine the reliability of Agent Holston’s testimony as to what Francis’s co-conspirators had testified at trial. Moreover, Francis had ample opportunity to cross-examine Agent Holston as well as “to present his side of the story.” United States v. Beal, 960 F.2d 629, 634 (7th Cir.), cert. denied, — U.S. -, 113" } ]

[ { "docid": "2020911", "title": "", "text": "the course of a conspiracy). Given Covington’s inability to provide an estimate at trial, it is not unlikely that he would have employed such a methodology in making the approximation here. If he did, the resulting estimate may be seriously flawed because Cov-ington may have erroneously added seven years to the relevant course of dealing. Of course, we are only speculating because, given the lack of any inquiry below into the basis for Covington’s estimate, we have no way of knowing what impact the seven years may have had. But this unexplained discrepancy between the “uncontroverted” affidavits and Covington’s own trial testimony certainly adds to the level of our discomfort with the district court’s finding of drug quantity. One other aspect of the Covington affidavits gives us pause. Covington purports in the first affidavit to have known Beler for approximately thirty years, but he testified at trial that he had known the defendant for “ten to twelve years or longer.” (July 28, 1992 Tr. at 5.) When pressed, he stated that he had known Beler since he had been about fourteen or fifteen years old, and Covington was thirty-seven at the time of his testimony. (Id.) The inconsistencies on this relatively minor point do not instill confidence in Cov-ington’s ability to estimate the quantity of drugs he had purchased from Beler over what, according to the government, was almost a sixteen-year course of dealing. Our discomfort with Covington’s affidavits stems in part from these inconsistencies, but we are also aware that Covington was a cocaine addict during most, if not all, of the relevant time period. During cross-examination at trial, Covington admitted that he had been addicted to cocaine in 1991 when he became a government informant and that his addiction had spanned approximately ten years. (July 28,1992 Tr. at 41, 44.) He also indicated in his direct testimony that his cocaine use had been “heavy” from approximately 1983 to 1989. (Id. at 15.) Indeed, in explaining at trial why he was unable to estimate the volume of his purchases from Beler, Covington said that “there was a lot of" }, { "docid": "7207624", "title": "", "text": "to support the amount of marijuana attributable to him. According to Gordon Robbins, because Osborne abused alcohol, the district court was obligated to subject Osborne’s testimony to a heightened standard of scrutiny when evaluating the amount of marijuana attributable to Gordon Robbins. Relying on United States v: Beler, 20 F.3d 1428 (7th Cir.1994), Gordon Robbins contends that, once Osborne’s testimony is subjected to that higher standard of scrutiny, the testimony of Amezquita, who attributed less marijuana to the conspiracy than Osborne, is more credible.. Under the relevant conduct guideline, a conspirator is liable for all the acts of his coconspirators which were “reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § lB1.3(a)(l)(B). In Beler, our court held that the district court should have subjected the testimony of a witness to “heightened scrutiny” because the witness, who was a cocaine addict, had submitted three inconsistent statements regarding the amount of drugs attributable to the conspiracy. See Beler, 20 F.3d at 1433-35. As Beler expounds, the inconsistent statements of a witness, along with factors affecting the witness’ credibility and reliability such as his drug addictions, are factors that must be considered and weighed carefully by the sentencing court. When the court must weigh the reliability of several witnesses who may be addicts, we defer to its determinations. When, in such circumstances, the district court is faced with the differing live accounts of two witnesses and selects one that is as, or more, plausible than the other, its credibility judgment, which at the outset we are loathe to second-guess, will virtually never be disturbed. United States v. Clay, 37 F.3d 338, 344 (7th Cir.1994). The difficulties in the witness’ testimony in Beler were blatant internal inconsistencies compounded by his drug use; accordingly, we held that the witness’ second affidavit was insufficient to support the district court’s calculation of drug quantity. The “heightened standard of scrutiny” required in Beler was triggered by both the material inconsistency in the witness’ statements and his drug addiction. See United States v. Lanter-man, 76 F.3d at 161 (distinguishing Beler, 'finding" }, { "docid": "11043379", "title": "", "text": "left to the sound discretion of the sentencing court, who had the opportunity to listen to the tape and observe the witnesses. See Osborne, 931 F.2d at 1153; see also United States v. Adipietro, 983 F.2d 1468, 1479 (8th Cir.1993). The court specifically stated that it believed Michael’s testimony, as corroborated by the tapes. We upheld an obstruction of justice enhancement under similar circumstances in United States v. Osborne, 931 F.2d at 1151. There, co-inmates of Osborne testified he had told them he wanted two government witnesses against him to disappear, and stated he could find money to have it done. In the instant case, Henderson took even more action in accordance with his plan; not only did Henderson ask Michael about the possibility of hiring his cousin to take care of Bryant, but he also solicited another man. When Michael asked Henderson why he had not called Michael’s cousin, Henderson responded that he had spoken to his own cousin, who was going to do the job. Michael’s testimony constitutes sufficient evidence of Henderson’s solicitation of the two men to murder Bryant, see, e.g., United States v. McGill, 32 F.3d 1138, 1144 (7th Cir.1994) (sentencing court can rely on hearsay; defendant had power to subpoena guard it he had chosen to do so), and much of his testimony was corroborated. The district court did not clearly err in imposing an enhancement for obstruction of justice. For the foregoing reasons we AFFIRM the convictions of Henderson and Leroy Nolan, VACATE Henderson’s sentence and REMAND for resentencing on the issue of the amount of drugs attributable to him. . We do not conclusively hold that on remand the court cannot base any findings on Bryant's testimony. See Beler, 20 F.3d at 1435 (“Our rejection of the drug quantity estimated in Covington’s second affidavit does not bar Covington from providing drug quantity information on remand.”). It must, however, explain its findings so that we can have confidence that the court believes that Bryant's testimony is sufficiently credible in certain respects or is corroborated by other reliable evidence. . We note that this is" }, { "docid": "11043369", "title": "", "text": "relevant conduct properly credited to Henderson. U.S.S.G. § 1B1.3(a)(2). The court then attributed to Henderson, in addition to the 18 grams he had been convicted of selling to Melvin, only 10% of the testified amounts because it could not accept, for several reasons, the full amount Bryant claimed. In reaching this decision, the court referred to Henderson’s apparent difficulty in obtaining the full ounce Melvin sought and the lack of testimony concerning any other purchasers visiting the Irving apartment during the many times Melvin was present. The court also discussed the government’s failure to seize any other drugs from Henderson and the absence of any police testimony regarding other sales at any of Henderson’s alleged drug houses. Finally, the court emphasized the “vagueness and generalized” nature of Bryant’s testimony and the lack of money to support his contentions that he sold such large amounts of drugs. The court therefore attributed to Henderson a total of between 50 and 150 grams of cocaine base, resulting in a base offense level of 32. U.S.S.G. § 2Dl.l(c)(4). Henderson properly asserts that a defendant has a right to be sentenced based on testimony with a “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see also United States v. Beler, 20 F.3d 1428, 1432 (7th Cir.1994). Once the district court determined that the 18 grams Melvin had purchased from Henderson did not reflect the true scale of Henderson’s offense, it had the duty to approximate the quantity of the controlled substance involved. U.S.S.G. § 2D1.1 application note 12 (the court “shall approximate”) (emphasis added). We have recognized that this inquiry will not be precise, but the district court may not engage in “nebulous eyeballing.” United States v. Mumford, 25 F.3d 461, 467 (7th Cir.1994) (quoting United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992)); see also Ferguson, 35 F.3d at 333 (“The court may make a rough approximation_”). We reiterate that the court’s estimate must be based on reliable information, Beler, 20 F.3d at 1433, and to ensure" }, { "docid": "2020923", "title": "", "text": "Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). . As the Paulino court observed, the need to approximate drug quantity under the Guidelines \"is not a license to calculate drug amounts by guesswork.” 996 F.2d at 1545. . We are not suggesting that a witness is barred from attempting to estimate drug quantity at sentencing once he is unable to do so on the spot at trial. The belated estimate, however, should not be merely conclusory, but should provide some explanation of how the witness settled on the estimated figure. Cf., e.g., Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1315 (7th Cir.1989) (affidavit in civil case must explain apparent inconsistency with deposition testimony in order to create an issue of fact on summary judgment); Babrocky v. Jewel Food Co. and Retail Meatcutters Union, Local 320, 773 F.2d 857, 861 (7th Cir.1985) (affidavits did not create factual issue precluding grant of summary judgment where they contradicted earlier deposition testimony without explaining the contradiction or attempting to resolve the disparity). And before the district court relies on the estimate in passing sentence, it should consider whether the estimate has \"sufficient indicia of reliability to support its probable accuracy.\" U.S.S.G. § 6A1.3(a). . Beler testified that he had begun selling cocaine to Covington only in 1986. (July 29, 1992 Tr. at 27, 50.) Regardless of whether Coving-ton’s or Beler’s testimony is believed, it remains uncontroverted that Beler did not reside in Springfield, Illinois between the fall of 1976 and sometime in 1981. Moreover, Covington never indicated in his trial testimony that he had purchased cocaine from Beler during that period. Indeed, the government conceded at oral argument that there was no trial evidence that supported the affidavits' assertion that the course of dealing had begun in 1976, as opposed to 1983 or 1984. .The government argues that Beler did not leave the Springfield, Illinois area until the fall of 1976 and that no evidence suggested that he did not return for visits between 1976 and 1981. The government would thus have us assume that" }, { "docid": "2020907", "title": "", "text": "the record suggests that the .court reached that conclusion without any further inquiry into the. matter. Covington was never required to explain under oath the discrepancy between his two estimates. Indeed, neither party presented any live testimony in the sentencing phase of the case. The government’s typographical error explanation is certainly plausible, given that the corrected numbers merely removed zeros from the originals. Yet even so, the error reflects badly on the reliability of the affidavits as a whole. We must assume, after all, that Covington reviewed and signed the initial affidavit after the typographical error had been made. If he were truly sure of the number of ounces purchased from Beler, we would expect him to have caught the error. But there was other evidence sug-gésting that Covington was not so sure. In addition to his affidavits, Covington testified on the government’s behalf at Beler’s trial. He referred generally to a series of cocaine transactions with Beler, but when asked on direct examination to approximate the amount of cocaine he had purchased from Beler over the years, Covington was unable to do so, responding: “It would be really hard to pin down to an exact amount, sir, because there was a lot of money spent, lot of damage done.” (July 28, 1992 Tr. at 15.) Beler called this testimony to the district court’s attention at sentencing, but the court apparently believed it had no impact on the reliability of the estimates in the second affidavit, as the court concluded that Covington’s sworn- affidavit was uncontroverted. (Nov. 30, 1992 Tr. at 10.) We have some difficulty with the court’s conelusory finding. Although Beler failed to come forward with his own alternative estimate of drug quantity, he did succeed in discrediting Covington’s estimate by pointing to Covington’s inability to make a similar estimate of drug quantity at trial. Because the affidavits offered only bare estimates with no explanation of how Covington may have arrived at those'figures, we think Beler’s reliance on the trial testimony was sufficient to raise a question about the reliability of Covington’s affidavits. We thus believe that the" }, { "docid": "7352760", "title": "", "text": "standards of the plain error doctrine ... which allows appellate courts to correct only ‘particularly egregious errors’ for the purpose of preventing a miscarriage of justice.” Lieberman v. Washington, 128 F.3d 1085, 1095 (7th Cir.1997) (quoting United States v. Whaley, 830 F.2d 1469, 1478 (7th Cir.1987)). In response to Sargent’s newly submitted claim that Pam’s testimony was unreliable hearsay, the Government states that the district court correctly found that “a reasonable jury could draw an inference from the testimony of Pamela Brewer that Sargent was responsible for loading 30 pounds of marijuana into the vehicle Pamela Brewer delivered from Arizona to Indiana.” It is true that while due process requires “that a defendant have a reasonable opportunity to rebut contested hearsay and that contested hearsay be reliable,” United States v. Campbell, 985 F.2d 341, 348 (7th Cir.1993) (citation omitted), a sentencing judge is free to “consider a wide variety of information that would be inadmissible at trial, including hearsay,” id. (citation and internal quotation omitted). “The district court is empowered to consider this broad range of information so that it may impose the sentence most appropriate to the defendant’s circumstances.” Id. (citation and internal quotation omitted). “In light of the judge’s duty to protect society and impose a fair and just sentence upon the defendant it is only reasonable to allow the judge wide latitude in the type of information he can consider when sentencing.\" United States v. Harty, 930 F.2d 1257, 1267 (7th Cir.1991) (citation and internal quotation omitted). When it comes to assessing the credibility and reliability of a witness whose hearsay testimony provides the basis for a sentencing determination, we do not second-guess the sentencing judge because he or she has had the best opportunity to observe the verbal and nonverbal behavior of the witnesses focusing on the subject’s reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture and body movements, as well as confused or nervous speech patterns in contrast with merely looking at the cold pages of an appellate record. United States v. Garcia, 66 F.3d 851, 856" }, { "docid": "7352761", "title": "", "text": "of information so that it may impose the sentence most appropriate to the defendant’s circumstances.” Id. (citation and internal quotation omitted). “In light of the judge’s duty to protect society and impose a fair and just sentence upon the defendant it is only reasonable to allow the judge wide latitude in the type of information he can consider when sentencing.\" United States v. Harty, 930 F.2d 1257, 1267 (7th Cir.1991) (citation and internal quotation omitted). When it comes to assessing the credibility and reliability of a witness whose hearsay testimony provides the basis for a sentencing determination, we do not second-guess the sentencing judge because he or she has had the best opportunity to observe the verbal and nonverbal behavior of the witnesses focusing on the subject’s reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture and body movements, as well as confused or nervous speech patterns in contrast with merely looking at the cold pages of an appellate record. United States v. Garcia, 66 F.3d 851, 856 (7th Cir.1995) (citation and internal quotation omitted). Sargent offers us nothing in support of his contention that the additional thirty pounds of marijuana should not have been counted against him for sentencing purposes and in fact we have been unable to find anything in the record that would compel us to “second-guess” the sentencing judge’s conclusion in accepting Pam’s testimony as reliable. Both McClellan’s and Sargent’s attorneys attempted to impeach Pam’s credibility at trial, but quickly abandoned their respective cross-examinations after failing to elicit an impeaching response from her. Sargent also had ample opportunity to, and in fact did, cross-examine Pam regarding her testimony that McClellan had told her that she transported the thirty pounds of marijuana in his truck. We hold that Pam’s challenged hearsay testimony was reliable and that Sargent had an opportunity to rebut it. As such, there was no error, much less a “plain” one, which would warrant a reversal of Sargent’s sentence. G. Admission of 801 (d)(2)(E) Evidence The last of Sargent’s arguments is that the district court erred in" }, { "docid": "7207623", "title": "", "text": "violation of anti-bribery statute); United States v. Mitchell, 178 F.3d 904, 909 (7th Cir.1999) (rejecting claim that the government’s agreements with cooperating witnesses violate the federal anti-bribery statute); United States v. Condon, 170 F.3d 687, 688-89 (7th Cir.), cert. denied, — U.S.-, 119 S.Ct. 1784, 143 L.Ed.2d 812 (1999). We have joined all other circuits to have considered the claim in rejecting it. See Hardamon, 188 F.3d at 848 (listing cases). We hold that the Government’s promise to provide immunity to Osborne did not violate § 201(c)(2). I. Sentencing Issues 1. Findings Under U.S.S.G. § lB1.3(a)(l)(B) The district court, at sentencing, concluded that each of the three defendants, as part of the conspiracy, was responsible for more than 3,000 kilograms of marijuana. Gordon Robbins and Mr. Her-riman challenge the district court’s determination of the drug quantity attributable to each of them. We review the court’s drug quantity determination for clear error. See United States v. Lanterman, 76 F.3d 158,160 (7th Cir.1996). (a) Gordon Robbins’ claim Gordon Robbins challenges the district court’s reliance on Osborne’s testimony to support the amount of marijuana attributable to him. According to Gordon Robbins, because Osborne abused alcohol, the district court was obligated to subject Osborne’s testimony to a heightened standard of scrutiny when evaluating the amount of marijuana attributable to Gordon Robbins. Relying on United States v: Beler, 20 F.3d 1428 (7th Cir.1994), Gordon Robbins contends that, once Osborne’s testimony is subjected to that higher standard of scrutiny, the testimony of Amezquita, who attributed less marijuana to the conspiracy than Osborne, is more credible.. Under the relevant conduct guideline, a conspirator is liable for all the acts of his coconspirators which were “reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § lB1.3(a)(l)(B). In Beler, our court held that the district court should have subjected the testimony of a witness to “heightened scrutiny” because the witness, who was a cocaine addict, had submitted three inconsistent statements regarding the amount of drugs attributable to the conspiracy. See Beler, 20 F.3d at 1433-35. As Beler expounds, the inconsistent statements of" }, { "docid": "16544092", "title": "", "text": "testimony of Patricia Wal-drop, the district court concluded that Mr. Brumfield dealt one-half ounce of cocaine per day between April and mid-July 2000, rendering him accountable for distributing roughly 1.3 kilograms of this drug. Mr. Brumfield contests the reliability of this calculation, emphasizing not only equivocations in Waldrop’s testimony as to when she met him but also the witness’ history of drug abuse. More precisely, Mr. Brum-field submits that, given these circumstances, the district- court was required to subject Waldrop’s testimony to heightened scrutiny. Although we review deferentially a district court’s factual findings concerning drug quantity, we must be mindful of a defendant’s due process right to be sentenced on the basis of reliable information. See United States v. Galbraith, 200 F.3d 1006, 1011 (7th Cir.2000); United States v. Lanterman, 76 F.3d 158, 160 (7th Cir.1996). Because of this reliability concern, we have instructed district courts to scrutinize more carefully certain types of evidence offered at sentencing hearings. See United States v. Beler, 20 F.3d 1428, 1434-37 (7th Cir.1994). In particular, when a witness plagued by a history of drug abuse offers testimony marked by blatant and material inconsistencies, we expect a sentencing court to engage in a more searching analysis of this evidence. See United States v. Robbins, 197 F.3d 829, 849-50 (7th Cir.1999). At the same time, though, the mere fact an individual has a poor memory or history of drug abuse does not prohibit consideration of her testimony. See United States v. McEntire, 153 F.3d 424, 436 (7th Cir.1998). Simply put, so long as the facts “bear sufficient indicia of reliability to support their probable accuracy, the court may consider them in sentencing.” Lanterman, 76 F.3d at 161. Although Waldrop’s testimony contained some equivocations, we cannot conclude that the ambiguities rendered this evidence so unreliable as to preclude the district court’s considering it in calculating Mr. Brumfield’s sentence. During direct examination, the Government inquired when Ms. Waldrop first met Mr. Brum- field. She responded: “approximately April of 2000.” Brumfield Sentencing Tr. at 27. She offered a similar reply when asked to approximate the date on which she" }, { "docid": "2020912", "title": "", "text": "since he had been about fourteen or fifteen years old, and Covington was thirty-seven at the time of his testimony. (Id.) The inconsistencies on this relatively minor point do not instill confidence in Cov-ington’s ability to estimate the quantity of drugs he had purchased from Beler over what, according to the government, was almost a sixteen-year course of dealing. Our discomfort with Covington’s affidavits stems in part from these inconsistencies, but we are also aware that Covington was a cocaine addict during most, if not all, of the relevant time period. During cross-examination at trial, Covington admitted that he had been addicted to cocaine in 1991 when he became a government informant and that his addiction had spanned approximately ten years. (July 28,1992 Tr. at 41, 44.) He also indicated in his direct testimony that his cocaine use had been “heavy” from approximately 1983 to 1989. (Id. at 15.) Indeed, in explaining at trial why he was unable to estimate the volume of his purchases from Beler, Covington said that “there was a lot of money spent, [a] lot of damage done.” (Id.) Despite this addiction to cocaine and despite the passage of time, Covington was able to come up with an estimate post-trial. In these circumstances, we believe the district court should have subjected any information provided by Covington to special scrutiny in light of his dual status as a cocaine addict and government informant. Such a heightened standard of scrutiny is consistent with the rule adopted by a number of other circuits when considering a drug quantity estimate provided by an informant who has a history of drug addiction. See Miele, 989 F.2d at 666-67 (“Because of the questionable reliability of an addict-informant, we think it is crucial that a district court receive with caution and scrutinize with care drug quantity or'other precise information provided by such a witness before basing a sentencing determination on that information”); Simmons, 964 F.2d at 776 (rejecting drug quantity testimony of an informant who had lied under oath at trial and whose memory was impaired by “a history of cocaine addiction”); United" }, { "docid": "16544091", "title": "", "text": "this relevant conduct subdivision in calculating his client’s sentence. Indeed, an examination of the entire sentencing proceeding, including the written objections to the PSR by Mr. Brumfield, makes clear that the defense was under no misapprehension about the scope of the judicial inquiry into Mr. Brumfield’s relevant conduct. Notably, counsel did not even seek a continuance to better respond to this line of analysis. Cf. Pandiello, 184 F.3d at 687. Indeed, during oral argument before this court, Mr. Brumfield’s counsel candidly admitted that he had anticipated the Government’s reliance on this provision and, as such, was prepared to respond. Given these circumstances, we cannot accept Mr. Brumfield’s contention of inadequate notice. 2. We next address Mr. Brumfield’s remaining contentions concerning the district court’s calculation of drug quantity. In particular, he submits that the district court based its calculation on unreliable evidence, namely the testimony of Patricia Waldrop. Moreover, Mr. Brumfield challenges the district court’s decision to hold him accountable for certain drug sales attributable to other members of the Armstrong organization. a. Based on the testimony of Patricia Wal-drop, the district court concluded that Mr. Brumfield dealt one-half ounce of cocaine per day between April and mid-July 2000, rendering him accountable for distributing roughly 1.3 kilograms of this drug. Mr. Brumfield contests the reliability of this calculation, emphasizing not only equivocations in Waldrop’s testimony as to when she met him but also the witness’ history of drug abuse. More precisely, Mr. Brum-field submits that, given these circumstances, the district- court was required to subject Waldrop’s testimony to heightened scrutiny. Although we review deferentially a district court’s factual findings concerning drug quantity, we must be mindful of a defendant’s due process right to be sentenced on the basis of reliable information. See United States v. Galbraith, 200 F.3d 1006, 1011 (7th Cir.2000); United States v. Lanterman, 76 F.3d 158, 160 (7th Cir.1996). Because of this reliability concern, we have instructed district courts to scrutinize more carefully certain types of evidence offered at sentencing hearings. See United States v. Beler, 20 F.3d 1428, 1434-37 (7th Cir.1994). In particular, when a witness plagued" }, { "docid": "2020914", "title": "", "text": "States v. Robison, 904 F.2d 365, 371-72 (6th Cir.1990) (rejecting drug-quantity estimate of heavy drug user who admitted that relevant time period was “very hazy” due to her drug use), cert. denied, 498 U.S. 946, 111 S.Ct. 360, 112 L.Ed.2d 323 (1990). As our previous discussion indicates, the district court in this case did not subject Covington’s affidavits to the searching scrutiny we must require; instead, the court merely accepted the affidavits at face value. In light of the inconsistencies we have identified between Covington’s affidavits and his trial testimony, as well as Covington’s status as an informant who had been addicted to cocaine, we find that the court clearly erred in doing so. Our rejection of the drug quantity estimate in Covington’s second affidavit does not bar Covington from providing drug quantity information on remand. But we must require that the district court scrutinize that information to ensure that it possesses “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a): In light of the questions raised by the current record and of the importance of the drug quantity determination to Beler’s sentence, we believe that a hearing would aid the district court’s resolution of this disputed issue on remand. See U.S.S.G. § 6A1.3 commentary (“An evi-dentiary hearing may sometimes be the only reliable way to resolve disputed issues”); see also United States v. Roberts, 14 F.3d 502, 521 (10th Cir.1993); Robison, 904 F.2d at 371-72. C. The district court also credited Michael Truitt’s direct testimony that he had purchased six to seven ounces of cocaine from Beler during the last three to four years. Truitt testified that he had purchased cocaine from Beler “over ten times,” although he could not remember how many times more than ten. (July 29, 1992 Tr. at 8.5.) Truitt conceded on cross-examination, however, that the six to seven ounce figure was only a “rough estimate” and that his memory was not all that good. (Id. at 89.) Beler’s counsel then attempted to elicit more specific information about Truitt’s purchases. Truitt testified that less than half the time (approximately four times), he" }, { "docid": "7207625", "title": "", "text": "a witness, along with factors affecting the witness’ credibility and reliability such as his drug addictions, are factors that must be considered and weighed carefully by the sentencing court. When the court must weigh the reliability of several witnesses who may be addicts, we defer to its determinations. When, in such circumstances, the district court is faced with the differing live accounts of two witnesses and selects one that is as, or more, plausible than the other, its credibility judgment, which at the outset we are loathe to second-guess, will virtually never be disturbed. United States v. Clay, 37 F.3d 338, 344 (7th Cir.1994). The difficulties in the witness’ testimony in Beler were blatant internal inconsistencies compounded by his drug use; accordingly, we held that the witness’ second affidavit was insufficient to support the district court’s calculation of drug quantity. The “heightened standard of scrutiny” required in Beler was triggered by both the material inconsistency in the witness’ statements and his drug addiction. See United States v. Lanter-man, 76 F.3d at 161 (distinguishing Beler, 'finding that glaring inconsistencies in the testimony of the witness that formed the basis of the judge’s determination of the amount of drugs); United States v. Garcia, 66 F.3d 851, 858 (7th Cir.1995) (distinguishing Beler, concluding that an internally consistent statement of a marijuana user was sufficient to support the court’s drug quantity calculation). In this case, Osborne testified for more than a day; he was cross-examined by all three defense attorneys. Gordon Robbins challenges Osborne’s reliability because he admitted that he abused alcohol; however, he does not argue that Osborne’s testimony contained significant inconsistencies or lapses of memory regarding the amount of marijuana. In fact, the record reveals that even the alleged inconsistencies between Osborne’s testimony and Amezquita’s are not inconsistencies. Amezquita entered the conspiracy eight months after Osborne and clearly was at the lower level of the distribution operation. In • addition, Amezquita dealt primarily with Gordon Robbins, who gave him the marijuana he wanted Amezquita to break up. Osborne, however, began participating in the conspiracy around January of 1995 by delivering marijuana; Osborne" }, { "docid": "9754031", "title": "", "text": "informant.” Id. at 1435. The district court in Beler, because of these inconsistencies among the witness’s affidavits and his trial testimony, clearly erred when it did not subject the affidavits to “searching scrutiny.” Id. at 1435. Nevertheless, the Seventh Circuit noted that on remand, this witness was not barred from providing drug quantity information, provided that “the district court scrutinize that information to ensure that it possesses sufficient indicia of reliability to support its probable accuracy.” Id. (internal quotation and citation omitted). In United States v. McEntire, 153 F.3d 424, 437 (7th Cir.1998), the court was faced with a situation analogous to that in Beler and reached the same result, remanding for the district court to directly address the contradiction and explain why it credited one statement rather than the other. In United States v. Brothers, 75 F.3d 845 (3d Cir.1996), a coconspirator testified at the sentencing hearing that the defendant “never knew the amount of cocaine involved”; however, the FBI agent who had initially interviewed the coconspirator gave hearsay testimony at sentencing that the eoconspirator had stated earlier that the defendant did know of the amount of drugs ‘involved in the transaction. Id. at 847. The Third Circuit went on to emphasize that, in general, hearsay evidence can be proper sentencing evidence — and it may even be credited “over sworn testimony, especially where there is other evidence to corroborate the inconsistent hearsay statement.” Id. at 848 (internal quotation and citation omitted). Although the district court gave reasons why it believed that the hearsay evidence from the FBI agent was more credible than the testimony of the coconspirator, id. at 850, the Third Circuit concluded that the reasons could not support the district court’s conclusion. Id. at 853. These cases illustrate the following principles in the context of calculating the amount of drugs for sentencing purposes: 1) a witness’s inconsistent and contradictory testimonies, be they from sworn testimony or hearsay, may properly form the basis for calculating the amount of drugs; 2) however, in cases of inconsistent or contradictory statements from the same witness, the district court must sufficiently" }, { "docid": "9754029", "title": "", "text": "Sentencing Guidelines, “the district court may consider any information which bears sufficient indicia of reliability to support its probable accuracy, including hearsay evidence, without regard to admissibility under the Federal Rules of Evidence which govern at trial.” Solis, 299 F.3d at 455 (emphasis added) (internal quotation and citation omitted). Even when a witness has “told lies and contradicted himself,” although it “creates a credibility question for the district court to resolve,” the testimony may still bear a sufficient indicia of reliability. United States v. Ramirez, 963 F.2d 693, 708 (5th Cir.1992). Specifically with respect to calculating the amount of drugs, the Seventh and Third Circuits have addressed the question of how a district court should deal with inconsistencies and contradictions among the different testimonies of the same witness or between a sworn testimony of a witness and a hearsay statement of that witness. In United States v. Beler, 20 F.3d 1428 (7th Cir.1994), the district court relied on two affidavits from a government witness and the trial testimony of a second witness in calculating the drug amount. Id. at 1430. The information and testimony from the witness who supplied the affidavits was: 1) at trial, the witness was unable to estimate the quantity of cocaine he had purchased from the defendant; 2) the first affidavit, signed prior to the defendant’s sentencing, stated that the witness had purchased 150 to 200 ounces of cocaine from the defendant; and 3) the second affidavit stated that the amount in the first affidavit was incorrect because of a typographical error and that the correct amount should have been 15 to 20 ounces of cocaine. Id. The Seventh Circuit found that the district judge’s conclusory finding as to the reliability of the second affidavit was not acceptable and held that the district court should have further explored the factual basis for the estimate before accepting the amount as uncontroverted. Id. at 1433-34. The Seventh Circuit also recognized that “the district court should have subjected any information provided by [this witness] to special scrutiny in light of his dual status as a cocaine addict and government" }, { "docid": "2462763", "title": "", "text": "which it is offered than any other evidence which the proponent can procure through reasonable efforts.” Fed.R.Evid. 804(b)(5). The district court ruled the grand jury statement inadmissible, finding that it was not “more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts” and that it was not certain that the prosecutors had not pressured Wilder into making the statement. Nevertheless, at sentencing the court stated that it considered Wilder’s grand jury testimony credible for sentencing purposes as evidence of the scope of Campbell’s cocaine operation. Campbell argues that it was error for the district court to consider the grand jury testimony in sentencing. “[A] sentencing judge is free to consider a wide variety of information that would be inadmissible at trial, including hearsay.” Beal, 960 F.2d at 634. “The district court is empowered to consider this broad range of information so that it may impose the sentence most appropriate to the defendant’s circumstances.” Id. A defendant, however, has a due process right to be sentenced on the basis of reliable information, United States v. Musa, 946 F.2d 1297, 1306 (7th Cir.1991), and the more lax evidentiary standards at sentencing are in some tension with that right. Beal, 960 F.2d at 634. We have resolved that tension by insisting that a defendant have a reasonable opportunity to rebut contested hearsay and that contested hearsay be reliable. Id. “To succeed on a challenge to a sentence, a defendant must show that information before the court was inaccurate, and that the court relied on it.” Musa, 946 F.2d at 1306. We give great deference to the district court’s determination that the hearsay is worthy of credence, and will review that ruling only for an abuse of discretion. Beal, 960 F.2d at 634. Wilder’s grand jury testimony that Campbell was a major drug dealer was corroborated by the testimony of the DEA agents concerning Campbell’s own incriminating statements, made at the Ground Round meeting, about the magnitude and scope of his drug operation. At that meeting, Campbell volunteered that he could deliver" }, { "docid": "9754028", "title": "", "text": "Shirley Preston from the end of 1998 to the end of 1999 or the first part of 2000. These purchases consisted of one or two kilograms of cocaine at a time, occurred approximately once a month, but sometimes less frequently, and consisted of powder cocaine only. When Buchanan sold this cocaine for Scroggins, some of it was in the crack form. Regarding the cocaine purchased from Preston, Buchanan’s testimony of the amount of crack cocaine was as follows: “[Gov’t]: Do you know approximately how much crack you sold? [Buchanan]: No, sir. More powder than crack. [Gov’t]: Was it more than 50 grams of crack? [Buchanan]: Yes, sir.” Buchanan then testified that Scroggins purchased cocaine from David Sosa starting in the first part of 2000. These purchases consisted of one to two kilograms at a time and occurred approximately once a month. Buchanan testified that this cocaine consisted in all of about five kilograms- — one kilogram of crack and four of powder. 2. Amount of Drugs and Inconsistent Information In making factual findings under the Sentencing Guidelines, “the district court may consider any information which bears sufficient indicia of reliability to support its probable accuracy, including hearsay evidence, without regard to admissibility under the Federal Rules of Evidence which govern at trial.” Solis, 299 F.3d at 455 (emphasis added) (internal quotation and citation omitted). Even when a witness has “told lies and contradicted himself,” although it “creates a credibility question for the district court to resolve,” the testimony may still bear a sufficient indicia of reliability. United States v. Ramirez, 963 F.2d 693, 708 (5th Cir.1992). Specifically with respect to calculating the amount of drugs, the Seventh and Third Circuits have addressed the question of how a district court should deal with inconsistencies and contradictions among the different testimonies of the same witness or between a sworn testimony of a witness and a hearsay statement of that witness. In United States v. Beler, 20 F.3d 1428 (7th Cir.1994), the district court relied on two affidavits from a government witness and the trial testimony of a second witness in calculating the" }, { "docid": "2462764", "title": "", "text": "be sentenced on the basis of reliable information, United States v. Musa, 946 F.2d 1297, 1306 (7th Cir.1991), and the more lax evidentiary standards at sentencing are in some tension with that right. Beal, 960 F.2d at 634. We have resolved that tension by insisting that a defendant have a reasonable opportunity to rebut contested hearsay and that contested hearsay be reliable. Id. “To succeed on a challenge to a sentence, a defendant must show that information before the court was inaccurate, and that the court relied on it.” Musa, 946 F.2d at 1306. We give great deference to the district court’s determination that the hearsay is worthy of credence, and will review that ruling only for an abuse of discretion. Beal, 960 F.2d at 634. Wilder’s grand jury testimony that Campbell was a major drug dealer was corroborated by the testimony of the DEA agents concerning Campbell’s own incriminating statements, made at the Ground Round meeting, about the magnitude and scope of his drug operation. At that meeting, Campbell volunteered that he could deliver large quantities of cocaine to the agents, and explained that he usually maintained a low profile and allowed surrogates like Gant to execute his transactions for him. This information, combined with all the other record evidence, present the markings of a man who is in control of an extensive drug operation. Wilder’s grand jury testimony was also supported by Gant's testimony about Campbell’s trafficking activities. Campbell had numerous opportunities to contest and challenge the credibility of all the evidence arrayed against him, and he did so vigorously. The district court did not abuse its discretion in considering Wilder’s grand jury testimony as further evidence that Campbell was trafficking in large quantities of cocaine. IV. CONCLUSION We Affirm Campbell’s conviction and sentence." }, { "docid": "9754030", "title": "", "text": "drug amount. Id. at 1430. The information and testimony from the witness who supplied the affidavits was: 1) at trial, the witness was unable to estimate the quantity of cocaine he had purchased from the defendant; 2) the first affidavit, signed prior to the defendant’s sentencing, stated that the witness had purchased 150 to 200 ounces of cocaine from the defendant; and 3) the second affidavit stated that the amount in the first affidavit was incorrect because of a typographical error and that the correct amount should have been 15 to 20 ounces of cocaine. Id. The Seventh Circuit found that the district judge’s conclusory finding as to the reliability of the second affidavit was not acceptable and held that the district court should have further explored the factual basis for the estimate before accepting the amount as uncontroverted. Id. at 1433-34. The Seventh Circuit also recognized that “the district court should have subjected any information provided by [this witness] to special scrutiny in light of his dual status as a cocaine addict and government informant.” Id. at 1435. The district court in Beler, because of these inconsistencies among the witness’s affidavits and his trial testimony, clearly erred when it did not subject the affidavits to “searching scrutiny.” Id. at 1435. Nevertheless, the Seventh Circuit noted that on remand, this witness was not barred from providing drug quantity information, provided that “the district court scrutinize that information to ensure that it possesses sufficient indicia of reliability to support its probable accuracy.” Id. (internal quotation and citation omitted). In United States v. McEntire, 153 F.3d 424, 437 (7th Cir.1998), the court was faced with a situation analogous to that in Beler and reached the same result, remanding for the district court to directly address the contradiction and explain why it credited one statement rather than the other. In United States v. Brothers, 75 F.3d 845 (3d Cir.1996), a coconspirator testified at the sentencing hearing that the defendant “never knew the amount of cocaine involved”; however, the FBI agent who had initially interviewed the coconspirator gave hearsay testimony at sentencing that the" } ]

[ { "docid": "1649232", "title": "", "text": "of the individual circumstances of class members is improper. But the Supreme Court in Amgen and the circuits in other cases have made clear that the need for some individualized determinations at the liability and damages stage does not defeat class certification. Rule 23(b)(3) “does not require a plaintiff seeking class certification to prove that each element of her claim is susceptible to classwide proof.” Amgen, 133 S.Ct. at 1196 (alterations and citations omitted). Rather, the question is whether there is “reason to think that [individualized] questions will overwhelm common ones and render class certification inappropriate----” Halliburton, 134 S.Ct. at 2412 (2014) (emphasis added). For example, damages will not be uniform across the class. But it is well-established that “[t]he individuation of damages in consumer class actions is rarely determinative under Rule 23(b)(3). Where ... common questions predominate regarding liability, then courts generally find the predominance requirement to be satisfied even if individual damages issues remain.” Smilow, 323 F.3d at 40; Newberg, supra, § 4:54 (It is a “black letter rule ... that individual damage calculations generally do not defeat a finding that common issues predominate .... ”). Even in cases where “the issue of injury-in-fact [not just damages calculation] presents individual questions, ... it does not necessarily follow that they predominate over common ones and that class action treatment is therefore unwarranted.” Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 108 (2d Cir.2007) (emphasis added). We do not think the need for individual determinations or inquiry for a de minimis number of uninjured members at later stages of the litigation defeats class certification. As contemplated by Halliburton, the district court also explicitly recognized the need to “preserv[e] the Defendants’ right to challenge individual damage claims at trial.” Add. 24a. B. In light of these three requirements — ensuring the class is definite, limiting aggregate recovery to the amount of the injury, and ensuring recovery by only injured parties — -it is difficult to understand why the presence of uninjured class members at the preliminary stage should defeat class certification. Ultimately, the defendants" } ]

[ { "docid": "1617663", "title": "", "text": "class actions and has ably performed his duties as interim class counsel. The Court concludes that plaintiffs’ counsel are “qualified, experienced, and generally able to conduct the proposed litigation.” New Directions, 490 F.3d at 313. As to the second element, there is no evidence of any conflict of interest between the named plaintiffs and the absent members of the putative class. Each class member allegedly purchased TBR directly from Ortho or Immucor during the class period at a supracompetitive price. “Each class member holds a strong common interest in establishing [defendants’] liability for these alleged overcharges.” Flonase, 284 F.R.D. at 218. The Court thus finds that the adequacy requirement is satisfied. B. Rule 28(b)(3) Requirements To obtain class certification under Rule 23(b)(3), plaintiffs must also demonstrate predominance and superiority by a preponderance of the evidence. 1. Predominance Predominance is the only certification requirement contested by the parties. Ortho argues that plaintiffs have failed to present a reliable method of proving two elements of their claim—antitrust impact and the amount of damages—using predominantly common proof. Ortho also contends that the individual issues involved in evaluating whether individual plaintiffs are entitled to tolling of the statute of limitations based on fraudulent concealment preclude a finding of predominance. Rule 23(b)(3) requires that “the questions of law or fact common to class members predominate over any questions affecting only individual members.” Predominance “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). “It ‘is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws,’ but a court may not relax its certification analysis as to each element of Rule 23.” Behrend, 655 F.3d at 191 (quoting Amchem, 521 U.S. at 625, 117 S.Ct. 2231); see also Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 815 (7th Cir.2012) (“[C]areful application of Rule 23 is necessary in antitrust cases, as in all eases, and ... in antitrust eases, Rule 23, when applied rigorously, will frequently lead to certification.” (internal quotation" }, { "docid": "19275327", "title": "", "text": "substance of a case may be neeessary[,]” however, “it is improper to advance a decision on the merits to the class certification stage.” Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir.2003) (citations and internal quotation marks omitted). ANALYSIS HGV opposes class certification on multiple grounds, arguing that Plaintiffs have failed to (1) set forth an objectively identifiable and ascertainable class, (2) satisfy Rule 23(a)’s commonality and typicality requirements, (3) satisfy Rule 23(b)(3)’s predominance and superiority requirements, or (4) satisfy Rule 23(b)(2)’s requirement that the action be one that primarily seeks injunctive or declaratory relief. As the Court finds that Rule 23(b)(3)’s predominance requirement is dispositive of Plaintiffs’ class certification motion, the Court does not address all of the parties’ arguments, but rather focuses its analysis on this key issue. 1. Rule 23(b)(3) A party seeking certification pursuant to Rule 23(b)(3) must demonstrate that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Although somewhat “redolent of the commonality requirement of Rule 23(a),” the predominance inquiry of Rule 23(b)(3) is ultimately “‘far more demanding’ because it ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’ ” Gene & Gene LLC v. Bio-Pay LLC, 541 F.3d 318, 326 (5th Cir.2008) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). In TCPA actions, the predominance inquiry is satisfied only when Plaintiffs “advance a viable theory employing generalized proof to establish liability with respect to the class involved.” Id. The elements of a TCPA claim are “(1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir.2012). Although TCPA cases are not “ ‘per se’ unsuitable for class resolution,” class certification is warranted only when the “unique facts” of a particular case indicate that individual adjudication of the pivotal element of prior express consent is unnecessary. Gene & Gene, 541 F.3d at 326. Thus, predominance in TCPA cases primarily turns" }, { "docid": "1458519", "title": "", "text": "F.2d at 595; Fewlass, 1978 WL 149, at *1. Unlike these Title VII cases, liability in this case .will not turn on actions taken among class members, but rather on the relationship between class members and the Defendants. So even if Venegas performed supervisory duties, he is not at odds with other class members on the legal theory uniting the class: whether the Defendants properly classified the workers as independent contractors. The adequacy requirement is satisfied. b. Attorneys Neither Defendant has challenged the adequacy of the Plaintiffs’ counsel, but I must assess it in order to appoint class counsel, as Rule 23(g) instructs. Nicholas Woodfield of The Employment Law Group, P.C. has provided information on his experience and expertise in the area of wage and hour misclassification cases. See June 15,' 2015 Decl. of Nicholas Woodfield (ECF No. 73-4). Attorney Woodfield has been involved in this suit at least since the Complaint was filed in June of 2014. See Compl. His filings reflect a commitment of time and resources to representing the class. I find that Attorney Woodfield will adequately represent the class. C. Application: Rule 23(b)(3) Requirements Once a plaintiff seeking class certification has met the Rule 23(a) prerequisites, that plaintiff must next demonstrate that common questions predominate over any individual questions, and that handling the matter as a class action is superior to other methods of resolving the controversy. Fed. R. Civ. P. 23(b)(3). 1. Predominance Predominance analysis requires me to determine whether common questions predominate over individual questions. See Fed. R. Civ. P. 23(b)(3); Scovil, 886 F.Supp.2d at 48. With respect to the predominance requirement, “the need for some individualized determinations at the liability and damages stage does not defeat class certification.” In re Nexium Antitrust Litig., 777 F.3d 9, 21 (1st Cir.2015). “Rather, the question is whether there is ‘reason to think that [individualized] questions will overwhelm common ones and render class certification inappropriate ... I” Id. (quoting Halliburton Co. v. Erica P. John Fund, Inc., — U.S. -, 134 S.Ct. 2398, 2412, 189 L.Ed.2d 339 (2014)). To analyze whether individual issues will overwhelm common ones," }, { "docid": "12919399", "title": "", "text": "Id. at 500. See also Murray, 434 F.3d at 953 (“When a few class members’ injuries prove to be substantial, they may opt out and litigate independently”). Finally, in this case, as was the case in the Eastern District of Pennsylvania, the likelihood of substantial actual damages is almost non-existent. “Choosing to pursue only statutory damages under 15 U.S.C. § 1681n in eases like these is a litigation strategy that is not the court’s place to second guess.” Id. at 499 n. 4. Accordingly, the Court finds that the named Plaintiff does not have an interest antagonistic to the interests of the class. He is an adequate class representative. B. Rule 23(b) Requirements To be certified, a class must not only satisfy the requirements of Rule 23(a), but must also demonstrate that the action is maintainable under Rule 23(b)(1), (2), or (3). Amchem Prods, v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). As stated above, Plaintiff seeks class certification under Rule 23(b)(3), which provides for certification when the court finds that the questions of law or fact common to members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed.R.Civ.P. 23(b)(3). Class certification under this provision must satisfy the twin requirements of predominance and superiority. Newton, 259 F.3d at 186. Each will be discussed in turn. 1. Predominance With regard to predominance, the Third Circuit has explained, Predominance tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation, a standard far more demanding than the commonality requirement of Rule 23(a), requiring more than a common claim. Issues common to the class must predominate over individual issues. Because the nature of the evidence that will suffice to resolve a question determines whether the question is common or individual, a district court must formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case. If proof of the essential" }, { "docid": "19639357", "title": "", "text": "joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.\" FED. R. CIV . P. 23(a) ; see also DL v. District ofColumbia, 860 F.3d 713, 723 (D.C. Cir. 2017). These four express requirements commonly are referred to as numerosity, commonality, typicality, and adequacy. See In re Rail FreightSurcharge Antitrust Litig.-MDL No. 1869, 725 F.3d at 249. Failure to demonstrate any of the express requirements is fatal to class certification. The moving party must also show that its proposed suit falls within at least one of the three categories of cases set forth in Rule 23(b). See FED. R. CIV . P. 23(b) ; DL v. District of Columbia, 860 F.3d at 723. In this case, plaintiffs move for class certification under Rule 23(b)(3), which permits the Court to certify a class action where \"questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.\" FED. R. CIV . P. 23(b)(3). These two requirements commonly are referred to as predominance and superiority. See Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) ; In re Rail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d at 249. \"The 'predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.' \" Tyson Foods. Inc. v. Bouaphakeo, 136 S.Ct. at 1045 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. at 623, 117 S.Ct. 2231 ). As Rule 23(b)(3) states, in deciding whether a moving party has satisfied the predominance and superiority requirements, pertinent considerations for a court include: \"(A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun" }, { "docid": "1458520", "title": "", "text": "that Attorney Woodfield will adequately represent the class. C. Application: Rule 23(b)(3) Requirements Once a plaintiff seeking class certification has met the Rule 23(a) prerequisites, that plaintiff must next demonstrate that common questions predominate over any individual questions, and that handling the matter as a class action is superior to other methods of resolving the controversy. Fed. R. Civ. P. 23(b)(3). 1. Predominance Predominance analysis requires me to determine whether common questions predominate over individual questions. See Fed. R. Civ. P. 23(b)(3); Scovil, 886 F.Supp.2d at 48. With respect to the predominance requirement, “the need for some individualized determinations at the liability and damages stage does not defeat class certification.” In re Nexium Antitrust Litig., 777 F.3d 9, 21 (1st Cir.2015). “Rather, the question is whether there is ‘reason to think that [individualized] questions will overwhelm common ones and render class certification inappropriate ... I” Id. (quoting Halliburton Co. v. Erica P. John Fund, Inc., — U.S. -, 134 S.Ct. 2398, 2412, 189 L.Ed.2d 339 (2014)). To analyze whether individual issues will overwhelm common ones, I must begin by identifying what the class members will ultimately have to prove to prevail on their state law claims. Liability in this case will turn on whether the class members were properly classified as independent contractors, or whether they instead should have been classified as employees. “Employees” are covered under Maine’s minimum wage and overtime laws; independent contractors are not. 26 M.R.S.A. § 664; see also 26 M.R.S.A. §§ 668(3), 670. The Law Court has not yet had an occasion to describe the test to be used to determine whether a worker is an employee or an independent contractor under 26 M.R.S.A. § 664, but Judge Hornby, deciding a class certification question in a case similar to this one, has predicted that the Law Court is likely to apply the “right to control” test which utilizes the eight-factors set forth in Murray’s Case, 130 Me. 181,154 A. 352 (1931). Scovil, 886 F.Supp.2d at 49-53. These eight factors, “although not necessarily concurrent or each in itself controlling,” are: (1) the existence of a contract" }, { "docid": "15648644", "title": "", "text": "not certify a nationwide class pursuant to Rule 23(b)(1)(B) because the relief being sought is either moot or must be obtained on an individual, rather than a classwide, basis. 2. Rule 23(b)(3)—The Monetary Damages Class COL 63: A class action can be certified under Rule 23(b)(3) where the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Crv. P. 23(b)(3). COL 64: The rule provides that the following matters are pertinent to these findings: (1) the class members’ interests in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already begun by or against class members; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the likely difficulties in managing a class action. Id. a. Predominance COL 65: The predominance requirement of Rule 23(b)(3) imposes a “far more demanding” standard than the commonality requirement of Rule 23(a). Community Bank III, 795 F.3d at 399 (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). COL 66: The predominance criterion “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Sullivan, 667 F.3d at 296 (citing In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 266 (3d Cir. 2009)). COL 67: In assessing predominance, a court “must examine each element of a legal claim ’through the prism’ of Rule 23(b).” Marcus, 687 F.3d at 600; see Community Bank III, 795 F.3d at 399-400. COL 68: It is the plaintiffs burden to demonstrate that the elements of each legal claim are capable of proof at trial through evidence that is common to the class rather than individual to its members. Marcus, 687 F.3d at 600 (citing In re Hydrogen Peroxide, 552 F.3d at 311). COL 69: “’Because the nature of the evidence that will suffice to resolve a question determines whether" }, { "docid": "23528324", "title": "", "text": "litigation have changed significantly and what will or will not likely be a major focus of the litigation will have to be assessed. We leave this to the District Court to address when and if the issue should arise. V. Rule 23(b)(3): Predominance Under Rule 23(b)(3), “questions of law or fact common to class members [must] predominate over any questions affecting only individual members.” This predominance requirement “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). To assess predominance, a court at the certification stage must examine each element of a legal claim “through the prism” of Rule 23(b)(3). In re DVI, Inc. Sec. Litig., 639 F.3d 623, 630 (3d Cir.2011). A plaintiff must “demonstrate that the element of [the legal claim] is capable of proof at trial through evidence that is common to the class rather than individual to its members.” Hydrogen Peroxide, 552 F.3d at 311. “Because the nature of the evidence that will suffice to resolve a question determines whether the question is common or individual, a district court must formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case.” Id. (quotation marks omitted). Marcus asserts four claims on behalf of the New Jersey class against BMW and Bridgestone: (1) violations of the NJCFA; (2) breach of the implied warranty of merchantability; (3) breach of contract; and (4) breach of the implied covenant of good faith and fair dealing. He also asserts a claim for breach of express warranty against BMW. We consider the elements of these claims through the prism of the predominance requirement to determine whether they are capable of proof with common, class-wide evidence. A. The Common Law Claims The essence of each of Marcus’s common law claims (at least for purposes of our predominance analysis) is that he purchased a defective product that caused him damage. In his complaint, Marcus alleges that Bridgestone RFTs (and, in turn, the BMW" }, { "docid": "20582825", "title": "", "text": "consideration of whether there are “questions of law or fact common to the class[.]” Fed.R.Civ.P. 23(a)(2). Commonality is satisfied when there are classwide answers. Walr-Mart Stores, Inc., 131 S.Ct. at 2551-52; Sullivan v. DB Invs., Inc., 667 F.3d 273, 298-300 (3d Cir.2011) (en banc) (considering “whether the defendant’s conduct was common as to all of the class members[ ]” and common questions led to common answers such that the “alleged misconduct and the harm it caused would be common as to all of the class members[ ]”). The predominance inquiry then focuses on whether “the questions of law or fact common to class members predominate over any questions affecting only individual members[.]” Fed.R.Civ.P. 23(b)(3). “Predominance tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation[.]” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310-11 (3d Cir.2008) (quotation marks omitted). Though related, this standard is “ ‘far more demanding’ than the commonality requirement of Rule 23(a),” id. (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)), and requires “more than a common claim.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 187 (3d Cir.2001). Reyes seeks to represent a class that may include tens of thousands of claimants with potential civil RICO claims arising from the defendants’ operation of a sham enterprise. “Establishing liability under [§ 1962(c) ] of the RICO statute requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity, plus an injury to business or property.” In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 269 (3d Cir.2009) (internal quotation marks and citations omitted). Reyes must show that the racketeering activity was the “but for” cause as well as the proximate cause of the injury purportedly suffered by the members of the proposed class. Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). Proximate cause requires “some direct relation between the injury asserted and the injurious conduct alleged.” Id. Accordingly, we must determine if Reyes produced sufficient evidence to show" }, { "docid": "15648645", "title": "", "text": "23(b)(3) imposes a “far more demanding” standard than the commonality requirement of Rule 23(a). Community Bank III, 795 F.3d at 399 (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). COL 66: The predominance criterion “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Sullivan, 667 F.3d at 296 (citing In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 266 (3d Cir. 2009)). COL 67: In assessing predominance, a court “must examine each element of a legal claim ’through the prism’ of Rule 23(b).” Marcus, 687 F.3d at 600; see Community Bank III, 795 F.3d at 399-400. COL 68: It is the plaintiffs burden to demonstrate that the elements of each legal claim are capable of proof at trial through evidence that is common to the class rather than individual to its members. Marcus, 687 F.3d at 600 (citing In re Hydrogen Peroxide, 552 F.3d at 311). COL 69: “’Because the nature of the evidence that will suffice to resolve a question determines whether the question is common or individual, a district court must formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case.’” Marcus, 687 F.3d at 600 (quoting In re Hydrogen Peroxide, 552 F.3d at 311). COL 70: Rule 23(b)(3) does not require a plaintiff seeking class certification to prove that each and every element of her claim is susceptible to classwide proof. Amgen Inc. v. Conn. Ret. Plans and Trust Funds, — U.S. —, 133 S.Ct. 1184, 1196, 185 L.Ed.2d 308 (2013). “What the rule does require is that common questions ’predominate over any questions affecting only individual [class] members.’” Id. (quoting Fed. R. Crv. P. 23(b)(3) (alteration and emphasis in the original)). COL 71: The named plaintiffs seek to pursue four categories of legal claims on behalf of the proposed four-state class: (1) breach of express warranty (PA); (2) breach of implied warranty of merchantability (PA, CA, TX); (3) violation of state consumer protection statutes (IL, CA, TX); and (4)" }, { "docid": "8510841", "title": "", "text": "the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fan and efficient adjudication of the controversy. “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Even if the commonality requirement of Rule 23(a)(2) is satisfied by a common shared experience, “the predominance criterion is far more demanding.” Id. at 624-25,117 S.Ct. 2231. As previously discussed, each class member must demonstrate detrimental reliance in order to be entitled to damages in the TILA action. The necessity of demonstrating detrimental reliance is a sufficient basis to deny class certification in a TILA action. See Perrone v. General Motors Acceptance Corp., 232 F.3d 433, 440 (5th Cir.2000), petition for cert. filed (U.S. Jan. 31, 2001) (No. 00-1251). See also Stout, 228 F.3d at 718 (plaintiff failed to meet the requirement of Rule 23(b) that common issues predominate over individual issues, when case involved fraud and TILA claims which required an individual assessment of each customer’s transaction); Krieger v. Gast, 197 F.R.D. 310, 320 (W.D.Mich.2000) (court refused to certify class under Rule 23(b)(3) because state-law fraud claim required proof of individualized reliance by class members). Assuming that the putative class consists of over 100 members, as Betten suggests, then the determination of each party’s actual damages on a case-by-case basis would defeat the purpose of certifying a class action. “Where numerous mini-trials are necessary to resolve individual questions of reliance and causation, the benefits of a class action disappear.” Yadlosky v. Grant Thornton L.L.P., 197 F.R.D. 292, 297 (E.D.Mich.2000). As the court observed in O’Neil v. Appel, 165 F.R.D. 479, 498 (W.D.Mich.1996), “district courts have refused to certify class actions for the very reason that individual proof of reliance would be necessary, thus creating an unmanageable lawsuit in which numerous ‘mini-trials’ on the issue of reliance and damages would overwhelm the common issues.” Similarly, plaintiff fails to meet the Rule 23(b)(3) requirement that a class action" }, { "docid": "6333689", "title": "", "text": "the members of the class predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). Secondly, plaintiffs must show that “a class action is superior to other available methods for the fair an efficient adjudication of the controversy.” Id. At the outset, the Court notes that there is an overlap between the predominance requirement of Rule 23(b)(3) and the prerequisite of Rule 23(a)(2) that common questions exist. “The courts have repeatedly focused on the liability issues, in contrast to damage questions, and, if they found issues were common to the class, have held that Rule 23(b)(3) was satisfied.” 4 Newberg on Class Actions, § 18-26. To prevail on a price-fixing conspiracy claim, plaintiffs must prove three elements: (1) that defendants violated antitrust laws; (2) the fact of damage, also called impact, of the unlawful activity; and (3) the amount of damages sustained because of the unlawful activity. See Lumco Indus., Inc. v. Jeld-Wen, Inc., 171 F.R.D. 168, 172 (E.D.Pa. 1997); In re Industrial Diamonds Antitrust Litig., 167 F.R.D. 374, 381 (S.D.N.Y.1996). On a motion for class certification, it is plaintiffs’ burden to establish that common or generalized proof will predominate at trial with respect to these essential elements of their antitrust claim. See In re Industrial Diamonds, 167 F.R.D. at 381; In re Plastic Cutlery Antitrust Litig., 1998 WL 135703, *5 (E.D.Pa. Mar. 20, 1998) (“In a price-fixing antitrust class action, plaintiffs must establish that both the defendants’ violations of law and the impact of those violations on the class members involve predominantly common issues. Plaintiffs must therefore make a threshold showing that the element of impact will predominantly involve generalized issues of proof, rather than questions which are particular to each member of the plaintiff class.” (internal citations omitted)). 1. Predominance “Predominance measures whether the class is sufficiently cohesive to warrant certification.” Newton, 259 F.3d at 186-87 (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 2249, 138 L.Ed.2d 689 (1997)). Defendants make two main arguments that class certification is not warranted because individualized issues predominate. First, they argue that the plaintiffs advance a unique" }, { "docid": "2210095", "title": "", "text": "138 L.Ed.2d 689 (1997). In Klay, we explained that “the common issues of fact [in a RICO action], concerning the existence of a[n enterprise and] a pattern of racketeering activity ... are quite substantial. They would tend to predominate over all but the most complex individual issues.” 382 F.3d at 1258-59. “It is primarily when there are significant individualized questions going to liability that the need for individualized assessments of damages is enough to preclude 23(b)(3) certification.” Id. at 1260. Although “a court should not determine the merits of a claim at the class certification stage, it is appropriate to ‘consider the merits of the case to the degree necessary to determine whether the requirements of Rule 23 will be satisfied.’ ” Heffner, 443 F.3d at 1337 (quoting Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1188 n. 15 (11th Cir.2003)). A district court must consider, for example, how the class will prove causation and injury and whether those elements will be subject to class-wide proof: [T]he issue of liability ... includes not only the question of violation, but also the question of fact of injury, or impact .... In making the determination as to predominance, of utmost importance is whether “impact” should be considered an issue common to the class and subject to generalized proof, or whether it is instead an issue unique to each class member, and thus the type of question [that] might defeat the predominance requirement of Rule 23(b)(3). Alabama v. Blue Bird Body Co., 573 F.2d 309, 320 (5th Cir.1978). “[I]f generalized proof of impact is ... improper, then the district court must carefully consider whether this requirement of individual proof does not defeat the class certification on either predominance or manageability grounds.” Id. at 324. Certification under Rule 23(b)(3) also requires that the class action device “is superior to other available methods for fairly and efficiently adjudicating the controversy.” “In many respects, the predominance analysis ... has a tremendous impact on the superiority analysis ... for the simple reason that, the more common issues predominate over individualized issues, the more desirable a" }, { "docid": "22050041", "title": "", "text": "of law or fact common to class members predominate over any questions affecting only individual members.” A failure of proof on the common question of materiality ends the litigation and thus will never cause individual questions of reliance or anything else to overwhelm questions common to the class. Therefore, under the plain language of Rule 23(b)(3), plaintiffs are not required to prove materiality at the class-certification stage. In other words, they need not, at that threshold, prove that the predominating question will be answered in their favor. Justice Thomas urges that a plaintiff seeking class certification “must show that the elements of [her] claim are susceptible to elasswide proof.” Post, at 491. See also post, at 496 (criticizing the Court for failing to focus its analysis on “whether the element of reliance is susceptible to classwide proof”). From this premise, Justice Thomas concludes that Rule 10b-5 plaintiffs must prove materiality before class certification because (1) “materiality is a necessary component of fraud on the market,” and (2) without fraud on the market, the Rule 10b-5 element of reliance is not “susceptible of a classwide answer.” Post, at 491, 495. See also post, at 496 (“[I]f a plaintiff wishes to use Basic’s presumption to prove that reliance is a common question, he must establish the entire presumption, including materiality, at the class certification stage.”). Rule 23(b)(3), however, does not require a plaintiff seeking class certification to prove that each “elemen[t] of [her] claim [is] susceptible to classwide proof.” Post, at 491. What the Rule does require is that common questions “predominate over any questions affecting only individual [class] members.” Fed. Rule Civ. Proc. 23(b)(3) (emphasis added). Nowhere does Justice Thomas explain how, in an action invoking the Basic presumption, a plaintiff class’s failure to prove an essential element of its claim for relief will result in individual questions predominating over common ones. Absent proof of materiality, the claim of the Rule 10b-5 class will fail in its entirety; there will be no remaining individual questions to adjudicate. Consequently, proof of materiality is not required to establish that a proposed class is" }, { "docid": "2196406", "title": "", "text": "23(b)(3) Requirements (1) Common Questions Predominate Under Rule 23(b)(3), a class may be certified only where “questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Rule 23(b)(3), Fed.R.Civ.P. The predominance requirement evaluates whether a proposed class is cohesive enough to merit adjudication by representation. See Moore, 306 F.3d at 1252. Predominance will be established if “resolution of some of the legal or factual questions that qualify each class member’s ease as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof.” Id. Consequently, to determine whether common questions of law or fact predominate, a court must focus “on the legal or factual questions that qualify each class member’s case as a genuine controversy ... [and] test[ ] whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., 521 U.S. at 623, 117 S.Ct. 2231; see also In re Visa Check/MasterMoney, 280 F.3d at 135. The predominance requirement is “readily met” in many securities fraud actions. Amchem Prods., 521 U.S. at 625, 117 S.Ct. 2231. The defendants’ arguments concerning predominance are addressed to the claims against them brought under Sections 11 and 12(a)(2) of the Securities Act and Section 10(b) of the Exchange Act. They do not dispute that most of the elements necessary to establish liability for these causes of action are common to the class. In addition, although not addressed by the defendants, their most readily available defenses to liability also present issues of law and fact that are common to the class. The Underwriter Defendants argue that these common questions do not predominate, however, principally because of issues related to reliance in connection with the Section 11 claim based on the 2000 Notes, and because of damage issues for both the Sections 11 and 12(a)(2) claims. The SSB Defendants argue principally that a presumption of reliance should not apply to the two Section 10(b) claims against them, and therefore, that individual issues will predominate over common ones. The plaintiffs" }, { "docid": "8563800", "title": "", "text": "second requirement of Rule 23(b)(2) is that plaintiffs seek “final injunctive relief or corresponding declaratory relief ... respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The District does not dispute that the declaratory relief sought by the class meets this criterion. Accordingly, the Declaratory Relief Class may be certified under Rule 23(b)(2). 2. The Damages Class May Be Certified Pursuant to Rule 23(b)(3). A (b)(3) class may be certified where “the questions of law or fact common to class members predominate over any questions affecting only individual members” and “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). These requirements are referred to respectively as “predominance and “superiority.” Barnes v. District of Columbia, 242 F.R.D. 113, 123 (D.D.C.2007). a. Predominance The predominance requirement “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). This inquiry is similar to the commonality inquiry, but “[i]f anything ... is even more demanding.” Comcast, 133 S.Ct. at 1432. “[T]he predominance analysis logically entails two distinct steps-the characterization step and the weighing step.” Newberg on Class Actions § 4:50 (5th ed. 2014). First, the court must “characterize the issues in the ease as common or individual.” Id. (emphasis omitted). This determination is “primarily based on the nature of the evidence.” Id. “Evidence is considered ‘common’ to the class if the same evidence can be used to prove an element of the cause of action for each member.” Kottaras v. Whole Foods Market, Inc., 281 F.R.D. 16, 22 (D.D.C.2012). By contrast, evidence is individualized when “members of the proposed class would need to present evidence that varies from person to person.” Id. Second, the Court must “compare the issues subject to common proof against the issues subject solely to individualized proof to assess whether the common issues predominate.” Newberg on Class Actions § 4:50 (5th ed. 2013). This comparison is “a qualitative rather than a quantitative concept.” Parko, 739 F.3d at 1085. “[T]he common" }, { "docid": "17825909", "title": "", "text": "existence of common questions of law or fact, the proponent of a putative class must also establish that these questions “predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). “The predominance analysis under Rule 23(b)(3) focuses on ‘the relationship between the common and individual issues’ in the case and ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’ ” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 545 (9th Cir.2013) (quoting Hanlon v. Chrysler Carp., 150 F.3d 1011, 1022 (9th Cir.1998)). Some variation is permitted among individual plaintiffs’ claims, Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 963 (9th Cir.2013), but Rule 23(b)(3) is “more demanding than Rule 23(a),” Comcast, 133 S.Ct. at 1432. Courts are thus required “to take a ‘close look’ at whether common questions predominate over individual ones,” id. (citation omitted), “begin[ning] ... with the elements of the underlying cause of action,” Erica P. John Fund, Inc., 131 S.Ct. at 2184. Of course, plaintiffs need not show at the certification threshold that predominant questions will be answered in their favor. Amgen, Inc. v. Conn. Ret. Plans & Trust Funds, — U.S.-, 133 S.Ct. 1184, 1196, 185 L.Ed.2d 308 (2013). The court considers the merits only to the extent required by Rule 23. Id. at 1194-95 (citing Wal-Mart, 131 S.Ct. at 2552 n. 6). To prevail on a motion to certify a class under Rule 23(b)(3), the party seeking certification must show: “(1) that the existence of individual injury resulting from the alleged ... violation ... [is] capable of proof at trial through evidence that is common to the class rather than individual to its members; and (2) that the damages resulting from that injury [are] measurable on a class-wide basis through use of a common methodology.” Comcast, 133 S.Ct. at 1430 (citation and internal quotation marks omitted). “Rule 23(b)(3), however, does not require a plaintiff ... to prove that each elemen[t] of [her] claim [is] susceptible to elasswide proof.” Amgen, 133 S.Ct. at 1197 (emphasis and alterations in Amgen) (citation and internal quotation marks omitted). Similarly, because “ ‘individualized monetary claims" }, { "docid": "3177495", "title": "", "text": "when it satisfies all the requirements of Fed.R.Civ.P. 23(a) and at least one of the alternative requirements of Rule 23(b).” Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir.1997). The district court certified the plaintiff class in this case pursuant to Rule 23(b)(3), which provides that a class may be maintained if “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members” and if a class action is a “superi- or” method of adjudicating the controversy. We have made clear that Rule 23(b)(3) “imposes two additional requirements for class certification — predominance and increased efficiency.” Jackson, 130 F.3d at 1006. The plaintiffs had the burden of meeting the requirements of Rule 23(a) and Rule 23(b)(3). See Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir.2000). A. AT&T contests the district court’s certification of the plaintiff class with respect to the federal RICO claims predicated on the mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343. AT&T asserts that the “predominance” requirement of Rule 23(b)(3) is not satisfied and that the class is not manageable. The plaintiffs counter that the manageability issue “is one of practicality and not one of law.” They assert that “[i]t cannot be error [for the district court] to hold that a case can be managed if the case, in fact, can be managed.” And, they point out, the district court claimed in its certification order that “common issues predominate, that individual issues can be adequately managed, and that class treatment is a superior method of adjudication.” While we do not dispute that manageability is generally an issue of fact and practicality and not one of law, we cannot overlook the fact that the district court reached its conclusions on manageability based upon .a faulty legal premise. A violation of the mail or wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, requires proof that a person “(1) intentionally participate^ in a scheme to defraud another of money or property and (2) use[d] the mails or wires in" }, { "docid": "1859274", "title": "", "text": "individual class member’s liability and damages claims. For these reasons, Rule 23(b)(2) certification would be inappropriate even had plaintiff met all the requirements of Rule 23(a). B. To meet the prerequisites for class certification under Rule 23(b)(3), a plaintiff must demonstrate “that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Szabo, 249 F.3d at 676 (citing Fed.R.Civ.P. 23(b)(3)). When making the determination of predominance and superiority, a court must consider, among other things: “(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” Fed.R.Civ.P. 23(b)(3). In this case, plaintiff fails both the predominance and superiority requirements. 1. “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). This inquiry “trains on the legal or factual questions that qualify each class member’s case as a genuine controversy ...” Id. The predominance requirement is similar to the typicality of claims and defenses requirement of Rule 23(a)(3), but is “far more demanding” than Rule 23(a)’s commonality requirement. Id. at 623-24, 117 S.Ct. 2231. Here, the Court has already determined that plaintiffs proposed class fails the commonality and typicality requirements. Plaintiff admits that the amount of damages will vary significantly among putative class members, as evidenced by her suggestion that the Court bifurcate the liability from the damages stage (Pl.’s Class Cert. Mem. at 26). Individual issues, however, would predominate even before the damages stage. Because plaintiff will not be able to prove class-wide, company-wide discrimination with statistical evidence alone, a jury would need to consider each putative class" }, { "docid": "12934533", "title": "", "text": "I, the RICO claim, before considering certification for the pendent state claim under Count II. Under both claims, however, much of the analysis is similar. A. Count I—The Rico Claim 1. Numerosity Mrs. Heastie asserts, and Community Bank does not dispute, that both classes will number in the thousands. Clearly, each class “is so numerous that joinder of all members is impracticable.” Fed.R. Civ.P. 23(a)(1). 2. Common Questions of Law or Fact and the Predominance of These Questions Over Individual Questions We will consider the Rule 23(a)(2) (commonality) and Rule 23(b)(3) (predominance) requirement together in this opinion, in part because the parties have tended to do so, and in part because the question of whether there are common issues is closely related to the question of whether these common issues predominate. In order to establish a violation under § 1962(c) of RICO, a plaintiff must prove the following six factors: 1) that a person 2) through a pattern 3) of racketeering activity or collection of an unlawful debt 4) directly or indirectly (a) invests in or (b) maintains an interest in, or (c) participates in 5) an enterprise; 6) the activities of which affect interstate commerce. Serig v. South Cook County Service Corp., 581 F.Supp. 575, 577 (N.D.Ill.1984); see also Landon v. GTE Communications Service, Inc., 696 F.Supp. 1213, 1215 (N.D. Ill.1988). In this case the issues involved in establishing a RICO violation are all common. Specifically, it will be necessary to determine whether Community Bank was involved in any racketeering activity, as that term is defined in 18 U.S.C. § 1961(1). Mrs. Heastie contends that Community Bank and the various contractors entered the scheme described above, that this scheme was a scheme or artifice to defraud under the mail fraud statute, 18 U.S.C. § 1341 (1982), that the mails were used on multiple occasions in this scheme, and that these acts of mail fraud constituted racketeering activity under § 1961(1). Community Bank seems to suggest that the determination of a scheme to defraud will depend on facts involving the individual class members, but we disagree. By the terms of" } ]

[ { "docid": "22055441", "title": "", "text": "on the Government’s negligent misstatements. As a result, the statutory exception undoubtedly preserves sovereign immunity with respect to a broad range of Government actions. But it does not bar negligence actions which focus not on the Government’s failure to use due care in communicating information, but rather on the Government’s breach of a different duty. In this case, unlike Neustadt, the Government’s misstatements are not essential to plaintiff’s negligence claim. The Court of Appeals found that to prevail under the Good Samaritan doctrine, Neal must show that FmHA officials voluntarily undertook to supervise construction of her house; that the officials failed to use due care in carrying out their supervisory activity; and that she suffered some pecuniary injury proximately caused by FmHA’s failure to use due care. FmHA’s duty to use due care to ensure that the builder adhere to previously approved plans and cure all defects before completing construction is distinct from any duty to use due care in communicating information to respondent. And it certainly does not “appea[r] beyond doubt” that the only damages alleged in the complaint to be caused by FmHA’s conduct were those attributable to Neal’s reliance on FmHA inspection reports. Conley v. Gibson, 355 U. S. 41, 45-46 (1957). Neal’s factual allegations would be consistent with proof at trial that Home Marketing would never have turned the house over to Neal in its defective condition if FmHA officials had pointed out defects to the builder while construction was still underway, rejected defective materials and workmanship, or withheld final payment until the builder corrected all defects. Of course, in the absence of the “misrepresentation” exception to the Tort Claims Act, respondent could also have brought a claim for negligent misrepresentation to recover for any injury caused by her misplaced reliance on advice provided by FmHA officials and on the FmHA inspection reports. Common to both the misrepresentation and the negligence claim would be certain factual and legal questions, such as whether FmHA officials used due care in inspecting Neal’s home while it was under construction. But the partial overlap between these two tort actions does" } ]

[ { "docid": "14189533", "title": "", "text": "the claim which he asserts.” Lambertson v. United States, 528 F.2d 441, 443 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976). Recovery is not barred by the misrepresentation exception of § 2680(h), however, if the plaintiff alleges the breach of a cognizable duty owed to him which is “distinct from any duty to use due care in communicating information.” Block, 460 U.S. at 297, 103 S.Ct. at 1093. In Block, the plaintiff received a Farmers Home Administration (“FmHA”) loan for a prefabricated house. The contract with the builder required that the house conform to FmHA standards and be subject to FmHA inspection and testing. Id. at 291, 103 S.Ct. at 1090. After the house was built, an FmHA inspector approved it. Id. at 292, 103 S.Ct. at 1091. The plaintiff later discovered numerous construction flaws and failures to conform to FmHA standards. She sued the government for its negligent inspections. The Supreme Court found that, although the misrepresentation exception barred suit for breach of the duty to use care in obtaining and communicating information, a tort action might lie -if Tennessee law provided for suit for breach of a Good Samaritan duty. Id. at 294-95, 103 S.Ct. at 1092. The plaintiff could prevail on such a claim if she could prove that the FmHA undertook to supervise the construction of her home and did so negligently. Id.; see also National Carriers, Inc. v. United States, 755 F.2d 675 (8th Cir.1985) (holding that USDA agent’s negligent failure to identify and tag beef exposed to ditchwater after trucking accident was distinct from negligent misrepresentation that separation of exposed and unexposed beef was unnecessary); Jimenez-Nieves v. United States, 682 F.2d 1 (1st Cir.1982) (Breyer, J.) (holding that dishonoring of benefit checks by Social Security Administration was distinct from agency employee’s misrepresentation which caused the check to be dishonored); Ware v. United States, 626 F.2d 1278, 1283 (5th Cir.1980) (holding that negligence of government in destroying cattle it misdiagnosed as tubercular was distinct from negligent representation that the cattle were diseased). B. Duty to Prohibit Export Dorking alleges" }, { "docid": "22055434", "title": "", "text": "before it was concluded, and after the house was completed. Her inspection reports contained no adverse comments on the construction work. After her third inspection, Wells issued a final report, signed by Neal, which indicated that the construction accorded with the drawings and specifications approved by FmHA. Home Marketing issued a one-year builder’s warranty covering workmanship, materials, and equipment. Neal moved into the house in 1977. During the winter, she discovered that the heat pump in the house was not working properly. She notified FmHA and Home Marketing. An inspection by Parkison, the County FmHA Supervisor, revealed that the heat pump unit was either defective or undersized. On March 22, 1978, FmHA’s State Director and other FmHA officials conducted a complete inspection and identified 13 additional defects in the construction of the house. These included deviations from plans approved by FmHA and from applicable Minimum Property Standards. The inadequacies in materials and workmanship included defects in caulking, bridging, sealing, and plumbing, and extended to all areas of the house, such as the porch, the rear door, the floor, the roof, the exterior paint, and the interior wall finish. Home Marketing refused to comply with FmHA’s request to cure these defects in accordance with the builder’s warranty. In November 1978 respondent asked FmHA to pay for the correction of the heating system and other structural defects. It declined to do so. B The United States District Court for the Eastern District of Tennessee dismissed Neal’s complaint for failure to state a claim on which relief can be granted. Neal v. Bergland, 489 F. Supp. 512 (1980). It found that no contractual duty to su pervise the construction of respondent’s home was created either by the Federal Housing Act of 1949 and the regulations promulgated thereunder or by the various agreements between respondent and FmHA. The court concluded that regulations requiring FmHA officials to ensure that the builder adhere to the terms of its construction contract were intended solely to protect the Government’s security interest, and were not intended to make FmHA warrant the quality of construction for the benefit of those" }, { "docid": "2636590", "title": "", "text": "Administration] inspection and appraisal, and who, in reliance thereon, has been induced by the seller to pay a purchase price in excess of the property’s fair market value.” The Court ruled that § 2680(h) encompasses claims arising out of negligent, as well as willful, misrepresentation. Id. at 702, 81 S.Ct. at 1298. Because negligence often underlies an inaccurate representation, a complaint should be examined to determine whether the real cause of the complaint is based on misrepresentation. If so, then an argument that the claim arises out of negligence rather than misrepresentation when the loss is caused by the breach of the government’s duty to use due care in obtaining and communicating information is merely to state the legal definition of the tort of “negligent misrepresentation.” Id. at 703-06, 81 S.Ct. at 1298-1300. Accordingly, the Court held the plaintiff’s claim was based on misrepresentation within the meaning of § 2680(h) and hence not actionable under the FTCA. Id. at 711, 81 S.Ct. at 1302-03. In the second case, Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), the Court again addressed the misrepresentation exception of § 2680(h). The plaintiff had a house constructed with financing provided by the Farmers Home Administration (“FmHA”). The plaintiff claimed that defects were discovered in the house after she set up residence and the defects were partly attributable to the failure of FmHA employees properly to inspect and supervise the construction of her house. The Court held the claim was not barred by the misrepresentation exception. Initially, it noted that the plaintiff in Neus-tadt alleged no injury that he would have suffered independently of his reliance on the erroneous appraisal. Id. at 296, 103 S.Ct. at 1093. The misrepresentation exception, the Court stated, relieves the government of tort liability for injuries which are “wholly attributable” to reliance on government misstatements, “[b]ut it does not bar negligence actions which focus not on the Government’s failure to use due care in communicating information, but rather on the Government’s breach of a different duty.” Id. at 297, 103 S.Ct. at 1093-94. The misstatements by" }, { "docid": "14189532", "title": "", "text": "arising out of negligent, as well as intentional, misrepresentation.” Block v. Neal, 460 U.S. 289, 295, 103 S.Ct. 1089, 1092, 75 L.Ed.2d 67 (1983). The misrepresentation exception bars not only claims of negligence in the misrepresentation, but in the conduct underlying the misrepresentation. United States v. Neustadt, 366 U.S. 696, 706-07, 81 S.Ct. 1294, 1300, 6 L.Ed.2d 614 (1961); Anglo-American & Overseas Corp. v. United States, 242 F.2d 236, 237 (2d Cir.1957) (denying claim for damages from destruction of tomato paste imported in reliance on import “release notices” issued by the Food and Drug Administration); Jones v. United States, 207 F.2d 563 (2d Cir.1953) (denying claim for damages from government’s negli gent estimate of the oil-producing capacity of land), cert. denied, 347 U.S. 921, 74 S.Ct. 518, 98 L.Ed. 1075 (1954). A plaintiff may not by artful pleading avoid the statutory exceptions to the FTCA “In determining the applicability of the § 2680(h) exception, a court must look, not to the theory upon which the plaintiff elects to proceed, but rather to the substance of the claim which he asserts.” Lambertson v. United States, 528 F.2d 441, 443 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976). Recovery is not barred by the misrepresentation exception of § 2680(h), however, if the plaintiff alleges the breach of a cognizable duty owed to him which is “distinct from any duty to use due care in communicating information.” Block, 460 U.S. at 297, 103 S.Ct. at 1093. In Block, the plaintiff received a Farmers Home Administration (“FmHA”) loan for a prefabricated house. The contract with the builder required that the house conform to FmHA standards and be subject to FmHA inspection and testing. Id. at 291, 103 S.Ct. at 1090. After the house was built, an FmHA inspector approved it. Id. at 292, 103 S.Ct. at 1091. The plaintiff later discovered numerous construction flaws and failures to conform to FmHA standards. She sued the government for its negligent inspections. The Supreme Court found that, although the misrepresentation exception barred suit for breach of the duty to use care" }, { "docid": "2168079", "title": "", "text": "of the FTCA. Section 2674 of Title 28 to the United States Code provides in pertinent part: The United States shall be liable, respective the provisions of this Title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances * * *. This abrogation of the doctrine of sovereign immunity, however, is narrowed by the exceptions set forth at Section 2680. Subsection (h) of that section allows an exception to application of the FTCA for “[a]ny claim arising out of * * * misrepresentation.” The United States Supreme Court has twice addressed the scope of the misrepresentation exception to the FTCA. In Neus-tadt, supra, a purchaser of a home relied on a statement reporting the results of a negligently inaccurate inspection and appraisal of the property made by the Federal Housing Administration for mortgage insurance purposes. Upon occupying the home, the purchaser discovered serious structural defects, not disclosed in the FHA statement, which rendered the house’s fair market value substantially lower than the FHA appraised value. The Supreme Court determined that the purchaser’s cause of action was one for negligent misrepresentation and the Section 2680(h) exception barred the claim. In Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), the Court addressed an action brought by a home purchaser who obtained a loan from the FmHA for the construction of a prefabricated house. After obtaining the loan, the purchaser contracted with a builder to construct the house. The contract required the work to conform to plans approved by FmHA and granted FmHA the right to inspect and test all materials and workmanship and reject any that were defective. Once the house was completed, an FmHA official inspected the home and reported that the building met the plans and specifications. Upon taking possession of the house, the purchaser found a number of defects. The Supreme Court held that the buyer’s claim under the FTCA was not solely for negligent misrepresentation, but also for the agency’s breach of the duty to use care to insure that the builder" }, { "docid": "14812507", "title": "", "text": "the intended recipient be misled to his financial harm. While we do not condone carelessness by the government employees in gathering and promulgating such information, neither can we justifiably ignore the plain words Congress has used in limiting the scope of the Government’s tort liability.’ ” Id. at 710-11, 81 S.Ct. at 1302. Like the plaintiffs in Neustadt, the plaintiffs in the case before us relied on government-supplied misinformation in one of its own documents when making their decision to purchase a house: plaintiffs relied on HUD’s Letter of Acceptance that the Tri State houses were constructed in accordance with government standards. The plaintiffs have alleged no injury they would have suffered but for the communication of HUD’s evaluation to Tri State and FmHA. Thus, the alleged duty to insure that the materials used in the construction of Tri State houses complied with the Minimum Property Standards is no different from the alleged duty of the FHA to inspect and appraise houses in a non-negligent manner in which Neustadt held was barred by the misrepresentation exception. In Block v. Neal, the Supreme Court again recognized that “the essence of an action for misrepresentation, whether negligent or intentional, is a communication of misinformation on which the recipient relies.” Block, 460 U.S. at 296, 103 S.Ct. at 1093. The plaintiff in Block, like the plaintiffs in the case before us, obtained a loan from the FmHA for the construction of a pre-fabricated house. The agreement between the plaintiff and the FmHA provided that the FmHA would provide financing for the plaintiff, that the work of the builder would conform to the plans of the FmHA, and that the FmHA had the right to inspect and test all materials and workmanship and to reject any that were defective. A FmHA official inspected the plaintiff’s house both during the construction and upon its completion. After the third inspection, the official issued a final report noting that the house was in compliance with FmHA-approved drawings and specifications. After moving into the house, the plaintiff discovered numerous defects. The builder subsequently failed to comply with the" }, { "docid": "22055435", "title": "", "text": "door, the floor, the roof, the exterior paint, and the interior wall finish. Home Marketing refused to comply with FmHA’s request to cure these defects in accordance with the builder’s warranty. In November 1978 respondent asked FmHA to pay for the correction of the heating system and other structural defects. It declined to do so. B The United States District Court for the Eastern District of Tennessee dismissed Neal’s complaint for failure to state a claim on which relief can be granted. Neal v. Bergland, 489 F. Supp. 512 (1980). It found that no contractual duty to su pervise the construction of respondent’s home was created either by the Federal Housing Act of 1949 and the regulations promulgated thereunder or by the various agreements between respondent and FmHA. The court concluded that regulations requiring FmHA officials to ensure that the builder adhere to the terms of its construction contract were intended solely to protect the Government’s security interest, and were not intended to make FmHA warrant the quality of construction for the benefit of those receiving rural assistance loans. Id., at 514-515. The District Court also concluded that respondent failed to state a claim against FmHA under applicable tort law. Id., at 515. The Court of Appeals reversed. Neal v. Bergland, 646 F. 2d 1178 (CA6 1981). It agreed with the District Court that FmHA had no contractual obligation to provide Neal with technical assistance or to inspect and supervise construction of her house. Id., at 1181. However, the Court of Appeals found that respondent’s complaint stated a claim for negligence under the principle “that one who undertakes to act, even though gratuitously, is required to act carefully and with the exercise of due care and will be liable for injuries proximately caused by failure to use such care.” Id., at 1181-1182, citing Restatement (Second) of Torts §323 (1965). It noted that, subject to express exceptions, the Tort Claims Act, 28 U. S. C. §2674, authorizes suit against the Government for the negligence of a federal agency in performing a voluntary undertaking. Ibid. The Court of Appeals then considered the" }, { "docid": "14812508", "title": "", "text": "exception. In Block v. Neal, the Supreme Court again recognized that “the essence of an action for misrepresentation, whether negligent or intentional, is a communication of misinformation on which the recipient relies.” Block, 460 U.S. at 296, 103 S.Ct. at 1093. The plaintiff in Block, like the plaintiffs in the case before us, obtained a loan from the FmHA for the construction of a pre-fabricated house. The agreement between the plaintiff and the FmHA provided that the FmHA would provide financing for the plaintiff, that the work of the builder would conform to the plans of the FmHA, and that the FmHA had the right to inspect and test all materials and workmanship and to reject any that were defective. A FmHA official inspected the plaintiff’s house both during the construction and upon its completion. After the third inspection, the official issued a final report noting that the house was in compliance with FmHA-approved drawings and specifications. After moving into the house, the plaintiff discovered numerous defects. The builder subsequently failed to comply with the FmHA’s request to cure the defects in accordance with the builder’s warranty to the purchaser, and FmHA declined to pay for certain defects. The Sixth Circuit found that the plaintiff’s complaint was not barred by the misrepresentation exception because 28 U.S.C. § 2674 of the FTCA authorizes suits against the government for the negligence of a federal agency in performing a voluntary undertaking. Block, 460 U.S. at 293, 103 S.Ct. at 1091. The Supreme Court upheld the Sixth Circuit, finding that the plaintiffs Good Samaritan claim was not barred by Neustadt and the misrepresentation exception: “Neustadt alleged no injury that he would have suffered independently of his reliance on the erroneous appraisal. Because the alleged conduct that was the basis of his negligence claim was in essence a negligent misrepresentation, Neustadt’s action was barred under the ‘misrepresentation’ exception.... In this case, unlike Neustadt, the Government’s misstatements are not essential to plaintiff’s negligence claim. The Court of Appeals found that to prevail under the Good Samaritan doctrine, Neal must show that FmHA officials voluntarily undertook to" }, { "docid": "13825291", "title": "", "text": "the last inspection, the official issued a final report, signed by Neal, which indicated that the construction accorded with the drawings and specifications approved by FmHA. However, after Neal moved into the house she discovered certain defects in construction. Upon inspection by FmHA officials, 13 such defects, including deviations from approved plans were found. HMA refused to comply with FmHA’s request to repair the defects. FmHA refused Neal’s demand to pay for the corrections. See 103 S.Ct. at 1091. Neal’s suit was dismissed by the district court on a motion to dismiss for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). It found that the government did not have a contractual duty to supervise construction of Neal’s house under federal law or the FmHA regulations, and found that no claim existed under applicable tort law. The United States Court for the Sixth Circuit reversed. Neal v. Bergland, 646 F.2d 1178 (6th Cir.1981). It found that the government could be held liable for negligence in performing a voluntary action, and therefore held that 28 U.S.C. § 2680(h) (1976) was inapplicable and that United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), was distinguishable. 646 F.2d at 1181-82. The Supreme Court, in affirming the decision of the court of appeals, redefined the nature and extent of the misrepresentation exception. The Court limited the applicability of Neustadt by concluding that 28 U.S.C. § 2680(h) (1976) barred an action for recovery under the FTCA only when a party alleged no injury that he would have suffered independently of his reliance on a misrepresentation or an omission. The Court explained that: Section 2680(h) thus relieves the Government of tort liability for pecuniary injuries which are wholly attributable to reliance on the Government’s negligent misstatement. As a result, the statutory exception undoubtedly preserves sovereign immunity with respect to a broad range of government action. But it does not bar negligence actions which focus not on the Government’s failure to use due care in communicating information, but rather on the Government’s breach of a different duty. Block v. Neal, 103 S.Ct. at" }, { "docid": "22055443", "title": "", "text": "not support the conclusion that if one is excepted under the Tort Claims Act, the other must be as well. Neither the language nor history of the Act suggests that when one aspect of the Government’s conduct is not actionable under the “misrepresentation” exception, a claimant is barred from pursuing a distinct claim arising out of other aspects of the Government’s conduct. “ ‘The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.’” United States v. Aetna Surety Co., 338 U. S. 366, 383 (1949), quoting Anderson v. Hayes Constr. Co., 243 N. Y. 140, 147, 153 N. E. 28, 29-30 (1926) (Cardozo, J.). Any other interpretation would encourage the Government to shield itself completely from tort liability by adding misrepresentations to whatever otherwise actionable torts it commits. We therefore hold that respondent’s claim against the Government for negligence by FmHA officials in supervising construction of her house does not “aris[e] out of . . . misrepresentation” within the meaning of 28 U. S. C. § 2680(h). The Court of Appeals properly concluded that Neal’s claim is not barred by this provision of the Tort Claims Act because Neal does not seek to recover on the basis of misstatements made by FmHA officials. Although FmHA in this case may have undertaken both to supervise construction of Neal’s house and to provide Neal information regarding the progress of construction, Neal’s action is based solely on the former conduct. Accordingly, the judgment of the Court of Appeals is Affirmed. The Chief Justice concurs in the judgment. Regulations then in effect allowed the recipient of an FmHA loan under § 502 of the Housing Act of 1949, 42 U. S. C. § 1472, to obtain new housing in one of three ways. The method undertaken by respondent, known as the “contract method” of financing new construction, involved the performance of work by a builder in accordance with a signed contract approved by FmHA. See 7 CFR § 1804.4(d) (1977). Although the" }, { "docid": "7823658", "title": "", "text": "slander,” id.; and (3) whether the GSA officials’ violations of federal debarment regulations constituted a tort cognizable under the FTCA. II. Discussion A. Claims Arising Out of the § 2680(h) Exceptions 1. Interference With Prospective Advantage Art Metal alleged in Counts I, II, and IV of its complaint that GSA officials interfered with its prospective economic advantage by failing to comply with procedural requirements set forth in the debarment regulations, failing to award Art Metal contracts to which it was entitled, cancelling and delaying other contracts, and suspending all business with Art Metal. The district court held that those claims were barred under section 2680(h) of the FTCA as “claims arising out of ... interference with contract rights.” 28 U.S.C. § 2680(h). Art Metal argues that the district court erred by failing to recognize that interference with prospective advantage is a distinct common law tort and therefore not barred by the interference with contract rights exception. As the Supreme Court recently noted, our task in construing the exceptions set forth in section 2680(h) is “to identify ‘those circumstances which are within the words and reason of the exception’ — no less and no more.” Kosak v. United States, — U.S.—, 104 S.Ct. 1519, 1523 n. 9, 79 L.Ed.2d 860 (1984) (quoting Dale-hite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953)). We are guided in this effort by the Court’s analysis in Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). In that case, plaintiff Neal received a loan from the Farmers Home Administration (FmHA) to finance the construction of a new home. Regulations required the FmHA to provide technical assistance to the borrower, to review the construction plans and the contract, and to make inspections. After moving into the house, Neal discovered several defects and eventually asked the FmHA to pay to correct them. Upon its refusal, she sued under the FTCA alleging that the defects were partly attributable to FmHA officials’ negligence in inspecting and supervising construction of the house. The issue before the Supreme Court was whether" }, { "docid": "2636591", "title": "", "text": "S.Ct. 1089, 75 L.Ed.2d 67 (1983), the Court again addressed the misrepresentation exception of § 2680(h). The plaintiff had a house constructed with financing provided by the Farmers Home Administration (“FmHA”). The plaintiff claimed that defects were discovered in the house after she set up residence and the defects were partly attributable to the failure of FmHA employees properly to inspect and supervise the construction of her house. The Court held the claim was not barred by the misrepresentation exception. Initially, it noted that the plaintiff in Neus-tadt alleged no injury that he would have suffered independently of his reliance on the erroneous appraisal. Id. at 296, 103 S.Ct. at 1093. The misrepresentation exception, the Court stated, relieves the government of tort liability for injuries which are “wholly attributable” to reliance on government misstatements, “[b]ut it does not bar negligence actions which focus not on the Government’s failure to use due care in communicating information, but rather on the Government’s breach of a different duty.” Id. at 297, 103 S.Ct. at 1093-94. The misstatements by the FmHA employees were not essential to the plaintiff’s claims of negligent supervision and inspection. However, the Court noted that, but for the misrepresentation exception of § 2680(h), the plaintiff also could have brought a claim for negligent misrepresentation. The partial overlap between such a claim and the negligence claim does not mean that because the former is excepted under the FTCA the latter must be as well. “Any other interpretation would encourage the Government to shield itself completely from tort liability by adding misrepresentations to whatever otherwise actionable torts it commits.” Id. at 298, 103 S.Ct. at 1094. Neustadt and Block instruct that a complaint alleging claims under the FTCA should be examined to determine whether the claims are based on the government’s failure to use due care in communicating information upon which the recipient relies. The claims that are so based are barred by the misrepresentation exception and those claims that are based on the breach of another distinct duty by the government are not barred. B. The Plaintiffs’ Claims Having reviewed the" }, { "docid": "7823659", "title": "", "text": "identify ‘those circumstances which are within the words and reason of the exception’ — no less and no more.” Kosak v. United States, — U.S.—, 104 S.Ct. 1519, 1523 n. 9, 79 L.Ed.2d 860 (1984) (quoting Dale-hite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953)). We are guided in this effort by the Court’s analysis in Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). In that case, plaintiff Neal received a loan from the Farmers Home Administration (FmHA) to finance the construction of a new home. Regulations required the FmHA to provide technical assistance to the borrower, to review the construction plans and the contract, and to make inspections. After moving into the house, Neal discovered several defects and eventually asked the FmHA to pay to correct them. Upon its refusal, she sued under the FTCA alleging that the defects were partly attributable to FmHA officials’ negligence in inspecting and supervising construction of the house. The issue before the Supreme Court was whether the action was barred under section 2680(h) as a “claim arising out of ... misrepresentation.” In holding that Neal’s claims were not barred by section 2680(h), the Court distinguished its earlier holding in United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), a case involving a pre-purchase inspection and appraisal of a home by the Federal Housing Administration. The Court explained that the “gravamen of the action against the Government in Neustadt was that the plaintiff was misled by [the appraisal] prepared by the Government. Neustadt alleged no injury that he would have suffered independently of this reliance on the erroneous appraisal.” 460 U.S. at 296, 103 S.Ct. at 1093. In contrast, the Court found that the government’s misstatements were not essential to Neal’s claim. In so finding, the Court focused on the government’s duty, stating that its duty to use due care in supervising and inspecting construction “is distinct from any duty to use due care in communicating information to respondent.” 460 U.S. at 297, 103 S.Ct. at 1094." }, { "docid": "13825290", "title": "", "text": "“government’s misrepresentation of a material fact is just one of the factors relied upon to maintain the suit for economic injury,” then the “claim arises out of misrepresentation.” A review of the cases makes plain that the government’s arguments are incorrect and that subject matter jurisdiction exists in this case. The Supreme Court in Block v. Neal,U.S. -, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), restated the principles to be used in determining the applicability of the 28 U.S.C. § 2680(h) (1976) misrepresentation “exception” to otherwise assertable causes of action under the FTCA. In that case Neal contracted with Home Marketing Associates (HMA) for the construction of a prefabricated house which required HMA’s work to conform to plans approved by Farmers Home Administration (“FmHA”). It also granted FmHA the right to inspect and test all materials and workmanship and reject any that were defective. Neal simultaneously entered into a deed of trust with FmHA and signed a promissory note to cover the construction expenses. During construction an FmHA official inspected the site three times. After the last inspection, the official issued a final report, signed by Neal, which indicated that the construction accorded with the drawings and specifications approved by FmHA. However, after Neal moved into the house she discovered certain defects in construction. Upon inspection by FmHA officials, 13 such defects, including deviations from approved plans were found. HMA refused to comply with FmHA’s request to repair the defects. FmHA refused Neal’s demand to pay for the corrections. See 103 S.Ct. at 1091. Neal’s suit was dismissed by the district court on a motion to dismiss for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). It found that the government did not have a contractual duty to supervise construction of Neal’s house under federal law or the FmHA regulations, and found that no claim existed under applicable tort law. The United States Court for the Sixth Circuit reversed. Neal v. Bergland, 646 F.2d 1178 (6th Cir.1981). It found that the government could be held liable for negligence in performing a voluntary action, and therefore held that 28 U.S.C. §" }, { "docid": "2168080", "title": "", "text": "value. The Supreme Court determined that the purchaser’s cause of action was one for negligent misrepresentation and the Section 2680(h) exception barred the claim. In Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), the Court addressed an action brought by a home purchaser who obtained a loan from the FmHA for the construction of a prefabricated house. After obtaining the loan, the purchaser contracted with a builder to construct the house. The contract required the work to conform to plans approved by FmHA and granted FmHA the right to inspect and test all materials and workmanship and reject any that were defective. Once the house was completed, an FmHA official inspected the home and reported that the building met the plans and specifications. Upon taking possession of the house, the purchaser found a number of defects. The Supreme Court held that the buyer’s claim under the FTCA was not solely for negligent misrepresentation, but also for the agency’s breach of the duty to use care to insure that the builder adhered to the approved plans and cured all defects before completing construction. The Court held that since the FmHA voluntarily assumed the duties of providing technical assistance to the borrower, reviewing the construction plans and contracts, and inspecting the construction, the government’s misstatements were not essential to the appellants’ negligence claim. The Hamres contend their present claim properly falls within the scope of the Block v. Neal decision. They argue that their “negligent inspection” cause of action is not premised upon the FmHA inspector’s misstatements solely, but on a breach of duties distinct from those duties forming the basis of a misrepresentation claim. In support of their argument, they cite Justice Marshall’s statement: Section 2680(h) * * * does not bar negligence actions which focus not on the government’s failure to use due care in communicating information, but rather on the government’s breach of a different duty. Id. at 298, 103 S.Ct. at 1094. In further support of their position, they cite Minnesota case law which sets forth a general duty to warn of hidden" }, { "docid": "14812509", "title": "", "text": "FmHA’s request to cure the defects in accordance with the builder’s warranty to the purchaser, and FmHA declined to pay for certain defects. The Sixth Circuit found that the plaintiff’s complaint was not barred by the misrepresentation exception because 28 U.S.C. § 2674 of the FTCA authorizes suits against the government for the negligence of a federal agency in performing a voluntary undertaking. Block, 460 U.S. at 293, 103 S.Ct. at 1091. The Supreme Court upheld the Sixth Circuit, finding that the plaintiffs Good Samaritan claim was not barred by Neustadt and the misrepresentation exception: “Neustadt alleged no injury that he would have suffered independently of his reliance on the erroneous appraisal. Because the alleged conduct that was the basis of his negligence claim was in essence a negligent misrepresentation, Neustadt’s action was barred under the ‘misrepresentation’ exception.... In this case, unlike Neustadt, the Government’s misstatements are not essential to plaintiff’s negligence claim. The Court of Appeals found that to prevail under the Good Samaritan doctrine, Neal must show that FmHA officials voluntarily undertook to supervise construction of her house; that the officials failed to use due care in carrying out their supervisory activity; and that she suffered some pecuniary injury proximately caused by FmHA’s failure to use due care. FmHA’s duty to use due care to insure the builder adhered to previously approved plans and cure all defects before completing construction is distinct from any duty to use due care in communicating information to the respondent. And it certainly does not ‘appea[r] beyond doubt’ that the only damages alleged in the complaint to be caused by FmHA’s conduct were those attributable to Neal’s reliance on FmHA’s inspection reports.” Block, 460 U.S. at 296-97, 103 S.Ct. at 1093-94. (Citations and footnotes omitted). The Court went on to hold that “[ajlthough FmHA in this case may have undertaken both to supervise construction of Neal’s house and to provide Neal information regarding the progress of the construction, Neal’s action is based solely on the former conduct.” Id. at 299, 103 S.Ct. at 1094-95. The Court ruled that the misrepresentation exception did not" }, { "docid": "13825289", "title": "", "text": "disbursal of funds for the subcontractors, we believe that HUD breached its responsibility of using due care on behalf of the contractors and therefore has violated the standard and made itself liable for the damages that have been incurred by the plaintiff. App. at A40. The government argued that no matter how JM attempted to characterize its action, the complaint was an action for injuries resulting from a negligent misrepresentation by omission of the government. As such, a suit for recovery under the FTCA was barred by 28 U.S.C. § 2680(h) (1976). See United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). The district court concluded that JM’s claim was one for misrepresentation and that it fell within the misrepresentation exception to the FTCA, and thus the court granted HUD’s motion to dismiss. This appeal followed. II A On appeal both JM and HUD renew the arguments they made before the district court. The government further argues that even if a non-misrepresentation claim arose out of the transaction, where the “government’s misrepresentation of a material fact is just one of the factors relied upon to maintain the suit for economic injury,” then the “claim arises out of misrepresentation.” A review of the cases makes plain that the government’s arguments are incorrect and that subject matter jurisdiction exists in this case. The Supreme Court in Block v. Neal,U.S. -, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), restated the principles to be used in determining the applicability of the 28 U.S.C. § 2680(h) (1976) misrepresentation “exception” to otherwise assertable causes of action under the FTCA. In that case Neal contracted with Home Marketing Associates (HMA) for the construction of a prefabricated house which required HMA’s work to conform to plans approved by Farmers Home Administration (“FmHA”). It also granted FmHA the right to inspect and test all materials and workmanship and reject any that were defective. Neal simultaneously entered into a deed of trust with FmHA and signed a promissory note to cover the construction expenses. During construction an FmHA official inspected the site three times. After" }, { "docid": "23339396", "title": "", "text": "116. Appellant’s claims regarding loans either made or denied him, asserted against the United States, its agencies, and the individual defendants in their official capacities, cannot be maintained under the FTCA and are therefore barred by sovereign immunity. (b) § 2680(h) A second limitation to the FTCA’s waiver of sovereign immunity is found in 28 U.S.C. § 2680(h), which provides that sovereign immunity shall not be waived with respect to: [а] ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights____ The district court found that those claims against the United States, its agencies, and the individual defendants in their official capacities which were not already barred by § 2680(a) were barred by § 2680(h): interfering with appellant’s contracts with his landlord; interfering with appellant’s contracts with First Natchez Bank; misrepresenting the productive capabilities of his farm; misrepresenting the extent of FmHA interest in his property; and misrepresenting the probability of appellant’s obtaining FmHA loans upon the disposition of various pieces of his property. [б] In Kosak v. United States, 465 U.S. 848, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984), the Supreme Court noted that a court’s task in applying § 2680(h) is “to identify ‘those circumstances which are within the words and reason of the exception’ — no less and no more.” 465 U.S. at 853, n. 9, 104 S.Ct. at 1523, n. 9 (citation omitted). The words and reason, in turn, of the misrepresentation exception within § 2680(h) were clarified in Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). In Neal, the Court reaffirmed its earlier interpretation of § 2680(h) as relieving the government of tort liability for pecuniary injuries attributable to reliance on negligent or intentional misstatements by the government. Id., 460 U.S. at 296-97, 103 S.Ct. at 1093-94. In other words, failure of the government to use due care in conveying information is not actionable under the misrepresentation exception. The Court held that § 2680(h) did not apply, however, when the government’s failure to use due" }, { "docid": "23549124", "title": "", "text": "1089, 1093, 75 L.Ed.2d 67 (1983); Neustadt, 366 U.S. at 705-08, 81 S.Ct. at 1299-1301. Neustadt alleged government employees negligently inspected and appraised the home Neustadt purchased, and Neustadt paid an excessive price in reliance on government reports based on this negligent inspection and appraisal. The Supreme Court held Neustadt’s claim barred as one “arising out of ... misrepresentation” as that tort was commonly understood. Neustadt, 366 U.S. at 706-07, 81 S.Ct. at 1301-02. In Neal, the Court developed in some detail the approach initially suggested in Neustadt. Neal had obtained a government loan to build a home. Neal’s contract with the builder granted the government the right to inspect and test materials and workmanship. After construction was completed plaintiff brought suit under FTCA alleging defects due in part to negligence of government employees in inspecting and supervising construction. The government relied upon Neustadt and argued the suit was barred by § 2680(h) as a “claim arising out of ... misrepresentation.” The Court distinguished Neustadt from Neal on the basis of an analysis of the conduct upon which the causes of action alleged in the two cases rested. Neustadt based his claim on an alleged breach of a duty to use due care in obtaining and communicating information upon which Neus-tadt might reasonably be expected to rely. Because the conduct upon which Neustadt rested his claim was in essence a negligent misrepresentation, the claim was barred by the “misrepresentation” exception. Neal, 460 U.S. at 296-97, 103 S.Ct. at 1093. Neal, on the other hand, did not rest her claim “on the Government’s failure to use due care in communicating information, but rather on the Government’s breach of a different duty.” Id. at 297, 103 S.Ct. at 1094. Neal alleged and would be required to prove the government voluntarily undertook to supervise the construction of her home and failed to discharge a duty imposed by the Good Samaritan doctrine to exercise due care in doing so. The government’s “duty to use due care to ensure that the builder adhere to previously approved plans and cure all defects before completing construction is" }, { "docid": "22055432", "title": "", "text": "Justice Marshall delivered the opinion of the Court. The Secretary of Agriculture is authorized by Title V of the Housing Act of 1949, 63 Stat. 432, as amended, 42 U. S. C. §1471 et seq. (1976 ed., and Supp. V), to extend financial and technical assistance through the Farmers Home Administation (FmHA) to low-income rural residents who seek to obtain housing. Respondent Onilea Neal, the recipient of an FmHA loan for the construction of a prefabricated house, brought this action under the Federal Tort Claims Act, 28 U. S. C. §§ 1346(b), 2671-2680. She alleged that defects discovered after she set up residence were partly attributable to the failure of FmHA employees properly to inspect and supervise construction of her house. This case presents the question whether respondent’s action is barred by 28 U. S. C. § 2680(h), which precludes recovery under the Tort Claims Act for “[a]ny claim arising out of . . . misrepresentation. ” I A The facts described in respondent’s complaint may be summarized as follows. Unable to obtain credit from other sources, Neal applied for a Rural Housing Loan from FmHA pursuant to § 502(a) of the Housing Act of 1949, 42 U. S. C. § 1472(a). FmHA approved her application in June 1977. During the summer of that year, Neal received advice from S. Lain Parkison, the FmHA Supervisor for Roane County, Tenn. On August 8, 1977, Neal contracted with Home Marketing Associates, Inc. (Home Marketing), for the construction of a prefabricated house. The contract required that Home Marketing’s work conform to plans approved by FmHA. It also granted FmHA the right to inspect and test all materials and workmanship and reject any that were defective. At the same time, Neal entered into a deed of trust with FmHA and signed a promissory note providing for repayment of the principal sum of $21,170, plus interest of 8% per annum on the unpaid principal. Home Marketing commenced work on Neal’s house in August 1977 and finished the following month. An FmHA official, Mary Wells, inspected the site on three occasions: soon after construction began, shortly" } ]

[ { "docid": "23282337", "title": "", "text": "course, could not claim that it was precluded by a competitor from the market (in this case, itself) because of commercial bribery, as was the case in Rangen, Inc. v. Sterling Nelson & Sons, Inc., 351 F.2d 851 (9th Cir. 1965) [cert. denied, 383 U.S. 936, 86 S.Ct. 1067, 15 L.Ed.2d 853 (1966)].” If this is in fact the reason why the district court refused to allow the amendment (and we think it is), we believe that both the court below and Calnetics have taken too narrow a reading of the Rangen and Fitch cases as to the relief available under § 2(c). Both Fitch, 136 F.2d at 15, and Rangen, 351 F.2d at 856-58, have held that § 2(c)’s application is not limited to situations of price discrimination, but also encompasses commercial bribery. In Rangen this court held: “With regard to the legislative history, defendants cite excerpts which amply demonstrate that, in enacting section 2(c), the prime concern of Congress was to curtail price discriminations accomplished by pseudo-brokerage arrangements. The Supreme Court, in Federal Trade Comm’n v. Henry Broch & Co., 363 U.S. 166, 169, 88 S.Ct. 1158, 4 L.Ed.2d 1124, noted this principal legislative concern. But, in a footnote (page 169), the Court also expressed the view that the legislative history demonstrates a Congressional intent to proscribe other practices such as the bribing of a seller’s broker by the buyer * * * [footnote omitted]. “This view is further borne out by the statement in the House Report, quoted below, indicating that Congress was concerned with preserving the fiduciary relationship between a broker and his client * * * [footnote omitted]. a * * * “ * * * In our case the bribery not only undermined a fiduciary relationship which Congress sought to protect, but gave one seller a grossly unfair advantage over a competing seller. Where commercial bribery is associated with evils which a particular provision of the antitrust laws was designed to prevent, the fact that it was bribery rather than a more defensible arrangement ought not to preclude application of the statute.” 351 F.2d" } ]

[ { "docid": "21949182", "title": "", "text": "injury. Fairly read, the Amended Complaint describes in impressive detail an extensive and, if true, astounding commercial bribery scheme. The scheme initially only involved Jakks allegedly making improper payments to the Shenker Defendants to ensure that they steered whatever WWE licensing business they could to Jakks. After a while, however, it became apparent to Jakks and the Shenker Defendants that coopting Bell would be essential not only to the continuation of the toy licenses, but to the future acquisition of the lucrative video game license. What initially made Bell indispensable was Playmates’s effort to circumvent Shenker and make an appeal directly to WWE for a fair opportunity to bid on-WWE’s licenses. Thus, Bell was brought into the bribery scheme and allegedly did what he was paid to do — get Playmates to agree to a buy-out. Soon after the Playmates buy-out, Jakks and Shenker made a corrupt play for the video game license. The first phase involved using Bell to scare off the current license-holder, Acclaim, from seeking to put in a renewal bid. That apparently worked because Acclaim faded from the picture before there was' any Jakks/THQ joint bid. The next phase involved Shenker and Bell making a concerted effort to not solicit any bids for the video game license from any company other than Jakks. Initially, this also worked as WWE, based on the recommendations of the allegedly crooked Bell and Shenker, accepted the Jakks bid. However, the alleged schemers did not anticipate two unsolicited bidders (Activision and THQ), who appeared determined to get their potential bids to WWE management. Specifically, concerned that any such end-run to WWE management would expose the bribery scheme, (Am.CompU 137) Jakks approached THQ, told it that the bid was fixed, and convinced THQ to join in the scheme or face certain defeat in the bidding process. The Amended Complaint says nothing of what happened to Activision, other than that its formal bid, which the Amended Complaint acknowledges was more lucrative than what WWE accepted, was blocked by Bell and Shenker from getting to WWE management. Because this bid never made its way" }, { "docid": "21949184", "title": "", "text": "to WWE management, according to the Amended Complaint, WWE suffered the loss of millions of dollars of royalties. As alleged, it is clear that Plaintiff has not suffered from an antitrust injury. Even if Defendants intended to engage in a bid-rigging scheme, and that scheme had a “competition-reducing effect” — both dubious assumptions — nothing about Jakks’s cooptation of THQ, even in combination with the bribery scheme, prevented WWE from negotiating licensing agreements with other vendors. As such this case is virtually identical to Fed. Paper Bd. Co. v. Amato, 693 F.Supp. 1376 (D.Conn.1988). In Amata, plaintiffs employee, Amata, took bribes from suppliers in return for him recommending sales to plaintiff. Id. at 1380. The price at which plaintiff purchased its supplies concededly was inflated as a result of the bribes, thus plainly causing plaintiff economic injury. Id. Yet, the Amata court, in granting the motion to dismiss, held that there was no antitrust injury because there was no allegation that non-bribing suppliers could not compete, or that plaintiff could not purchase from non-bribing suppliers. Id. at 1383-84 (finding no claim in the complaint to suggest that suppliers who refused to pay bribes to Amata were “precluded from taking competitive actions in order to secure sales with Federal” or that “Amata and the suppliers paying him bribes could have prevented any other supplier from dealing with Federal”). The court recognized (as does this Court) that the bribes were unfair competition, but that alone did not make them an actionable restraint on trade under § 4 of the Clayton Act. Id. at 1383; see also Calnetics Corp. v. Volkswagen, 532 F.2d 674, 687 (9th Cir.1976) (finding no antitrust injury where there were allegations of commercial bribery without allegations of other acts tending to restrain trade); Sterling Nelson & Sons, Inc. v. Rangen, Inc., 235 F.Supp. 393 (D.Idaho 1964) (finding no antitrust injury where influential state employee' was bribed to steer contracts to a particular company). Plaintiffs allegation that Jakks and THQ engaged in bid rigging and price fixing does not change the analysis, because THQ and Jakks were only two of" }, { "docid": "11920291", "title": "", "text": "approved the deal. (Id. ¶ 114.) At about the time WWE senior management approved the Jakks proposal, two other bidders (Activision and THQ) entered the scene. Though ignored or stiff-armed by Shenker and/or Bell, both Activision and THQ are alleged to have submitted informal proposals that were “clearly superior” to the deal WWE had already accepted from Jakks (how superior we are not told). (Id. ¶¶ 131-32.) These proposals never made it to WWE senior management, though, thanks to the alleged efforts of Bell and Shenker, who instead shared the bid information with Jakks. (Id. ¶ 134-35.) Eventually, to hide the bribery scheme and protect its interest in obtaining the bid, Jakks reached out to THQ and persuaded THQ to submit a joint bid for the videogame license, a bid that concededly was “comparable to Activision’s initial informal proposal.” (Id. ¶ 145.) It was this proposal that Bell and Shenker submitted to WWE senior management for approval. (Id. ¶¶ 146, 151.) Apparently, while this revised bid was being considered, Activision submitted a “more formalized version of [its] initial informal proposal to Shenker.” (Id. ¶ 153.) Again, no specifics about the royalties in this proposal are discussed in the Amended Complaint, and, in particular, there is no allegation that this bid was superior, let alone of how superior it was, to the joint Jakks-THQ bid. All that is alleged is that, “upon information and belief’ the bid “understated the amount Activision would have been willing to pay to obtain the videogame license.” (Id.) It bears emphasizing that in its Amended Complaint and in its Memorandum of Law, Plaintiffs only claim regarding the injury from the bidding process for the videogame license is that it was cheated out of a royalty rate that could have been 50% to 66% higher. This is not based not on anything that Activision or Acclaim are alleged to have bid, let alone might have been able to deliver, but instead on what THQ is alleged to have thought it might have to pay, not to WWE, but generally to “licensors.” (Id. ¶ 160.) It also bears" }, { "docid": "21949172", "title": "", "text": "Indeed, to bring THQ into the fold, Defendant Friedman allegedly told Defendant Farrell “that Jakks was in control of the videogame license, had access to the terms Activision had informally proposed, and that THQ could participate in the revenue stream from the videogame license at a lower-than-market royalty rate if THQ did not independently bid but instead joined Jakks to make a proposal....” (Am.CompU 137) THQ agreed, and became part of a joint venture with Jakks that submitted a bid to WWE. (Am. CompLIffl 144,146,154) Based on the allegedly corrupt recommendation of Bell and Shenker, on June 10,1998, WWE executed a licensing agreement with the Jakks/THQ joint venture, after having earlier accepted their joint bid. (Am.Compl.1ffl 146-49, 151) It' is important to note, however, that according to the Complaint, WWE management never knew about Activision’s interest in submitting a bid. In fact, Shenker and Bell ignored, and did not. forward- to WWE management, a formal proposal later prepared by Activision. They also did not solicit an increased bid from Activision. (Am.Compl^ 153) Moreover, Bell and Shenker allegedly shared Activision’s earlier informal bid with Jakks and THQ officials so they could make their bid slightly more comparable to Activision’s informal offer. (Am.Compl^ 145) As a result, according to the Amended Complaint, the joint bid ultimately accepted by WWE was allegedly fifty to sixty percent lower than what WWE could have earned from a competitive bid, thus costing WWE millions of dollars of lost royalties. (Am. CompLUf 163-64) After Jakks secured the video game license, its allegedly corrupt relationship with Shenker and Bell continued. On June 24, 1998, “as a necessary and essential part of the commercial bribery scheme,” Shenker and Bell secured an extension of the terms of Jakks’s domestic and international toy licenses to coincide with the term of the video game license. (Am.Compl^ 165) When the commercial bribery scheme was once again threatened with exposure during discovery associated with SSAI’s suit against WWE in Connecticut state court, Jakks allegedly took steps to conceal the scheme. For example, in response to a subpoena dated June 11, 2002, Jakks reportedly failed" }, { "docid": "21949095", "title": "", "text": "and in order to eliminate competition against Jakks, Bell offered to absolve Playmates of the obligation of its guarantee to WWE if Playmates would give up its rights to produce action figures. (Am.Compl.U 80-83) WWE alleges that this agreement cost the company its guarantee and royalties above the guarantee. (Am.ComplJ 83) Jakks was also facing competition in bidding on the video game license from THQ, and a new bidder, Activision. (Am. CompLU 127-29) On March 30, 1998, Bell recommended that WWE accept Jakks’s offer for the video game license. (Am. ComplJ 110) Subsequently, without solicitation from Bell or Shenker, Activision and THQ emerged as potential bidders in early April 1998. (Am.Compl.U 127-29) In response, Bell and Shenker attempted to convince THQ and Activision not to bid, going so far as to refuse to provide them with prospective terms for a bid. (Am. ComplJ 129) Nevertheless, THQ and Ac-tivision submitted informal proposals which were superior to Jakks’s previously submitted proposal. (Am.ComplJ 131-32) In order to protect the bribery scheme, Shenker and/or Bell concealed the informal proposals from WWE, but advised Jakks of the terms of THQ’s and Activision’s proposals. (Am.ComplJ 134-35, 145) Notwithstanding their efforts to conceal the bribery scheme, Jakks became concerned that WWE would learn of the superior offers from THQ and Activision. (Am. CompLH 133) In order to save the scheme, Jakks approached THQ with an offer to act as joint venture partners in securing the video game license. With THQ as a partner, Jakks could make a more competitive offer to WWE, while continuing to make a generous profit on the license. THQ would be required to pay both Jakks and WE for the license, while also funding and managing the licensed operations. (Am. Compl.HH 137,178-79,182-85) According to WWE, THQ accepted the offer because it was in desperate financial straits after the cancellation of one of its most lucrative licenses. (Am. Compl.HH 119-25) The Amended Complaint further alleges that THQ knew Jakks had never been in the video game business, knew that it was improper for Jakks to discuss with THQ the terms by which THQ could" }, { "docid": "4185664", "title": "", "text": "him bribes does not mean that the uncooperative sellers could no longer compete. For example, they might have informed Federal about Amata’s behavior. In any event, without allegations of additional facts that demonstrate how those suppliers were precluded from taking competitive actions in order to secure sales with Federal, the amended complaint does not sufficiently allege anticompetitive effect. In order to establish an anticompetitive effect adequate to avoid dismissal, it is not sufficient to allege an injury to a competitor. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977) (antitrust laws designed to protect competition not competitors). Rather, “[t]he inquiry under the rule of reason is directed at the challenged restraint’s overall impact on competitive conditions, rather than whether a particular party has been restrained by the conduct at issue.” Berman Enter., Inc. v. Local 333, United Marine Div., Int’l Longshoremen’s Ass’n, 644 F.2d 930, 937 (2d Cir.), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 381 (1981). See also NCAA, 468 U.S. at 104 (“Under the Sherman Act the criterion to be used in judging the validity of a restraint on trade is its impact on competition.”). 2. Antitrust Injury to Federal As regards Federal’s ability to buy wastepaper on competitive terms, the court finds nothing in the amended complaint which indicates that the kickback arrangements between Amata and some of the wastepaper suppliers foreclosed Federal from negotiating purchases with individual suppliers. Put another way, Federal has not suffered any antitrust injury with respect to its Sherman Act claim. Amata did not control Federal, nor is there any allegation that Amata and the suppliers paying him bribes could have prevented any other supplier from dealing with Federal had Federal attempted to purchase from such other supplier. A fair reading of the amended complaint indicates that the potential existed for Federal to obtain competitive prices from a wide range of suppliers. Of course, Amata’s disloyalty and Federal’s ignorance thereof resulted in depriving Federal from actually obtaining the benefits of competition among wastepaper suppliers. Nevertheless, there is no allegation" }, { "docid": "11920223", "title": "", "text": "pursuing the lucrative videogame license. (Id. ¶ 104.) This is the third category of racketeering conduct. When the illicit arrangement was threatened with exposure in April 1998, as a result of competition by THQ and Activision for the videogame license, Jakks allegedly secured THQ’s agreement not to submit an independent bid. (Id. ¶¶ 136-38.) Instead, on June 10, 1998, Jakks and THQ furtively formed the LLC, which obtained the videogame license from WWE as of that day. (Id. ¶ 154.) At the same time, Jakks secured an extension of its domestic and international toy licenses, which were coterminous with the videogame license. (Id. ¶ 165.) Plaintiffs Amended Complaint alleges that the scheme extended at least until January 2005 (when the Amended Complaint was presumably drafted) and lives on to this day because Jakks, THQ, and the LLC continue to share the proceeds from the allegedly fraudulently obtained videogame license. (Id. ¶¶ 149-64, 173-85, 249(b)(lxvii).) Plaintiff also claims Shenker/SSAI made covert payments to Bell until December 2001. (Id. ¶ 249(b)(xxvi).) Both of these series of payments, according to Plaintiff, qualify as money laundering predicates, and collectively comprisé the fourth category of racketeering acts. The fifth category involves allegations that the Jakks Defendants, Shenker, and Bell concealed their fraudulent activities from late 2000 until at least 2004, all in connection with litigation between SSAI and WWE in Connecticut. (Id. ¶¶ 186-241.) Thus, from Plaintiffs vantage point, Defendants’ pattern of racketeering activity began in late 1995 and continues until this day. Defendants argue that the alleged scheme could not have started in 1995 because Bell did not receive his first bribe until January 1998. (Mem. of Law in Supp. of the Jakks Defs.’ Mot. to Dismiss the Am. Compl. 8 (“Jakks.Mem.”).) According to Defendants, the alleged efforts by the Jakks Defendants to deprive WWE of the honest services of Shenker and SSAI prior to the corruption of Bell are of no import because Bell was the gatekeeper for the licensing process. (Id. at 9.) Without Bell’s corrupt influence, according to Defendants, all the bribery in the world of Shenker and SSAI would be" }, { "docid": "4185662", "title": "", "text": "injury to competition in a relevant market. Amata’s demand for and receipt of bribes and his redirection of the wastepaper supply through cooperative suppliers may have injured Federal, but it does not, standing alone, constitute an injury to competition. Assuming arguendo that the relevant market in this case is the market alleged by Federal, that is the supply of wastepaper to be used in making paperboard by Federal at its Sprague mill, competition in that market would arise in two ways. First, there would be competition among suppliers for sales to Federal. Second, there would be Federal’s efforts to make purchases on competitive terms with the various suppliers. With respect to each of these aspects of market competition, the requisite impact on competition is lacking. 1. Anticompetitive Effect on Competition for Sales to Federal The amended complaint fails to allege an injury to competition with respect to the ability of wastepaper suppliers to compete against each other for sales to Federal. The payment of bribes by suppliers to a purchasing agent does not by itself establish an anticompetitive effect. Although the bribes may have been illegal and unfair methods of competition, their illegality and unfairness does not support an inference that the bribes restrained competition. On the contrary, bribery could have been consistent with intense competition among the suppliers — some of which resorted to illegal measures to gain an advantage. Indeed, it is ironic that, in addition to its antitrust claims, Federal has brought a claim under the Connecticut Unfair Trade Practices Act, Conn.Gen.Stat. Ann. §§ 42-110a to -llOq (West 1987) (as amended by 1987 Conn.Acts 297 (Reg. Sess.)). The Sherman Act is intended to protect competition, “whereas ‘[u]nfair competition is still competition and the purpose of the law of unfair competition is to impose restraints on that competition.’ ” Mid-West Underground Storage, Inc. v. Porter, 717 F.2d 493, 497 (10th Cir.1983) (quoting Northwest Power Prods., Inc. v. Omark Indus., Inc., 576 F.2d 83, 88 (5th Cir.1978), cert. denied, 439 U.S. 116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979)). The fact that Amata dealt primarily with suppliers who paid" }, { "docid": "4185663", "title": "", "text": "establish an anticompetitive effect. Although the bribes may have been illegal and unfair methods of competition, their illegality and unfairness does not support an inference that the bribes restrained competition. On the contrary, bribery could have been consistent with intense competition among the suppliers — some of which resorted to illegal measures to gain an advantage. Indeed, it is ironic that, in addition to its antitrust claims, Federal has brought a claim under the Connecticut Unfair Trade Practices Act, Conn.Gen.Stat. Ann. §§ 42-110a to -llOq (West 1987) (as amended by 1987 Conn.Acts 297 (Reg. Sess.)). The Sherman Act is intended to protect competition, “whereas ‘[u]nfair competition is still competition and the purpose of the law of unfair competition is to impose restraints on that competition.’ ” Mid-West Underground Storage, Inc. v. Porter, 717 F.2d 493, 497 (10th Cir.1983) (quoting Northwest Power Prods., Inc. v. Omark Indus., Inc., 576 F.2d 83, 88 (5th Cir.1978), cert. denied, 439 U.S. 116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979)). The fact that Amata dealt primarily with suppliers who paid him bribes does not mean that the uncooperative sellers could no longer compete. For example, they might have informed Federal about Amata’s behavior. In any event, without allegations of additional facts that demonstrate how those suppliers were precluded from taking competitive actions in order to secure sales with Federal, the amended complaint does not sufficiently allege anticompetitive effect. In order to establish an anticompetitive effect adequate to avoid dismissal, it is not sufficient to allege an injury to a competitor. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977) (antitrust laws designed to protect competition not competitors). Rather, “[t]he inquiry under the rule of reason is directed at the challenged restraint’s overall impact on competitive conditions, rather than whether a particular party has been restrained by the conduct at issue.” Berman Enter., Inc. v. Local 333, United Marine Div., Int’l Longshoremen’s Ass’n, 644 F.2d 930, 937 (2d Cir.), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 381 (1981). See also NCAA, 468 U.S." }, { "docid": "4185661", "title": "", "text": "alleged conduct might have had requires a definition of the relevant market. “[A]n antitrust policy divorced from market considerations would lack any objective benchmarks,” Continental T.V., 433 U.S. at 53 n. 21, 97 S.Ct. at 2559 n. 21, and “[w]ithout market analysis, the competitive impact of the challenged restraint cannot be assessed,” Business Foods Serv., Inc. v. Food Concepts Corp., 533 F.Supp. 992, 996 (E.D.N.Y.1982). In Carlo C. Gelardi Corp. v. Miller Brewing Co., 421 F.Supp. 237 (D.N.J.1976), the court provided a succinct definition of relevant market: The relevant market is comprised of a geographic and a product market. The geographic market encompasses the area in which the defendant effectively competes with other individuals or businesses for the distribution of the relevant product. The relevant product market is composed of products that have reasonable interchangeability for the purposes for which they are produced — price, use and qualities considered. Id. at 243 (citations omitted). B. Federal’s Allegations of Anticompet-itive Impact Federal’s Sherman Act claim must fail because Federal has not alleged facts that establish an injury to competition in a relevant market. Amata’s demand for and receipt of bribes and his redirection of the wastepaper supply through cooperative suppliers may have injured Federal, but it does not, standing alone, constitute an injury to competition. Assuming arguendo that the relevant market in this case is the market alleged by Federal, that is the supply of wastepaper to be used in making paperboard by Federal at its Sprague mill, competition in that market would arise in two ways. First, there would be competition among suppliers for sales to Federal. Second, there would be Federal’s efforts to make purchases on competitive terms with the various suppliers. With respect to each of these aspects of market competition, the requisite impact on competition is lacking. 1. Anticompetitive Effect on Competition for Sales to Federal The amended complaint fails to allege an injury to competition with respect to the ability of wastepaper suppliers to compete against each other for sales to Federal. The payment of bribes by suppliers to a purchasing agent does not by itself" }, { "docid": "21949173", "title": "", "text": "Shenker allegedly shared Activision’s earlier informal bid with Jakks and THQ officials so they could make their bid slightly more comparable to Activision’s informal offer. (Am.Compl^ 145) As a result, according to the Amended Complaint, the joint bid ultimately accepted by WWE was allegedly fifty to sixty percent lower than what WWE could have earned from a competitive bid, thus costing WWE millions of dollars of lost royalties. (Am. CompLUf 163-64) After Jakks secured the video game license, its allegedly corrupt relationship with Shenker and Bell continued. On June 24, 1998, “as a necessary and essential part of the commercial bribery scheme,” Shenker and Bell secured an extension of the terms of Jakks’s domestic and international toy licenses to coincide with the term of the video game license. (Am.Compl^ 165) When the commercial bribery scheme was once again threatened with exposure during discovery associated with SSAI’s suit against WWE in Connecticut state court, Jakks allegedly took steps to conceal the scheme. For example, in response to a subpoena dated June 11, 2002, Jakks reportedly failed to produce any documents reflecting payments made to Shenker or revealing the fact that Shenker had acted as Jakks’s agent. (Am. Compl-¶ 198) In response to WWE’s repeated requests, Jakks allegedly continued to deny having made payments to Shenker. (Am.Compl.1ffl 201-07) It was not until November 11, 2003, after Shenker had recanted his perjured testimony in the Connecticut action and the Connecticut Order was issued, in which Jakks was specifically identified as one of WWE’s licensees that had made improper payments to Shenker, that Jakks “found” evidence of payments to Shenker in its files and turned them over to WWE. (Am.Compl.1ffl 214-20, 222, 228, 230) 2. Discussion Before discovery, courts should dismiss antitrust complaints “sparingly” where the proof of the alleged antitrust violation is largely in the hands of the defendants. Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746-47, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976) (characterizing the standard for dismissal of antitrust allegations as “concededly rigorous”); see also Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll, 128 F.3d" }, { "docid": "21949186", "title": "", "text": "several competitors for the video game license. As in Amata, WWE failed to demonstrate how the joint bid, even combined with the bribery of Shenker and Bell, prevented competitive bids from being offered to, or accepted by, WWE’s management. Indeed, the allegations in the Amended Complaint are even more problematic for Plaintiff here than in Ama-ta because the Amended Complaint identifies competitors that were active in the bidding process for the video game licenses. Acclaim and Activision submitted proposed bids to Plaintiff despite Bell’s and Shenker’s attempts to discourage them from bidding. Given these allegations, the Amended Complaint fails to allege how the mere submission of the joint bid, by itself, caused antitrust harm to WWE. Put another way, even if the joint bid was artificially low, there is no allegation that WWE was forced to accept that bid. Plaintiff counters by asserting that it suffered an antitrust injury because it was the victim of a bid-rigging conspiracy. Implicit in Plaintiffs argument is that all bid-rigging schemes necessarily deprive the “other party to the transaction of a fair price.” (WWE Sherman Act Resp. 22) Yet, that is not at all true here. Plaintiff is really a victim of its own choice, albeit a choice allegedly influenced by its corrupt employee, to accept Defendants’ joint (lower) bid in lieu of other higher bids. Thus, there is no cognizable antitrust injury from the alleged joint bid or the bribery scheme. Aside from failing to allege an antitrust injury, Plaintiff fails to adequately allege that any anti-competitive conduct was the cause of Plaintiffs injuries. As noted, to “satisfy the antitrust injury requirement, a § 4 plaintiff must show that its injury ‘flows from that which makes defendants’ acts unlawful,’ that ‘but for’ the alleged violation, the injuries would not have occurred.” Greater Rockford Energy, 998 F.2d at 401 (quoting Brunswick, 429 U.S. at 489, 97 S.Ct. 690 and MCI Commc’ns. Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1161 (7th Cir.1983)); see also Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 41 (2d Cir.1986) (“[A]n essential element in plaintiff[’]s claim" }, { "docid": "4185707", "title": "", "text": "willing to deal with them, the blanket license is not a restraint of trade.” Id. at 936. These cases demonstrate that anticompetitive effect is not to be blithely assumed. . The fact that the wastepaper suppliers were able to pass the cost of bribing Amata on to Federal and charge an excessive price for raw wastepaper does not mean there has been a restraint of trade for purposes of the Sherman Act. Presumably, the suppliers were able to pass these costs on to Federal because of Ama-ta’s willingness to bind Federal to purchase contracts that were not in Federal’s interest in return for bribes and kickbacks. While it is true that every purchase negotiated by Amata \"restrained” trade in that it involved the “fixing” of a price, the same is true of any contract between a buyer and a seller, and the Sherman Act has never been interpreted to impose a general prohibition on commercial contracts. See NCAA, 468 U.S. at 98, 104 S.Ct. at 2958; United States v. Topco Assocs., 405 U.S. 596, 606, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972). . The facts of Bunker Ramo are similar to the facts in this case. In Bunker Ramo, the plaintiff alleged that one of its employees and a supplier had been engaged in a scheme in which the supplier submitted false invoices for goods never received by the plaintiff. The employee filled out false delivery receipts so that the plaintiff paid the supplier for the goods never received, and in return the employee received bribes from the supplier. 713 F.2d at 1275. The Seventh Circuit Court of Appeals reversed the district court’s denial of the defendants’ motion to dismiss the plaintiffs Sherman Act claim. The court found that bribing an agent as part of a scheme to defraud — without allegations of additional behavior by the defendants that might give rise to an antitrust violation — did not constitute a per se violation of the Sherman Act and was deficient under the rule of reason for lack of any anticompetitive effect. Id. at 1284-85. Although Bunker Ramo involved" }, { "docid": "21949189", "title": "", "text": "royalties. On the contrary, the Amended Complaint provides detailed allegations regarding the true cause of WWE’s lost earnings, but that cause is not the purportedly illegal joint bid. Instead, it is clear from the Amended Complaint that the reason WWE never took a higher bid, and therefore never made more money, is because it was prevented from learning about any such bids by Shenker and Bell, who supposedly acted as they did because of substantial bribes from Jakks. In other words, it cannot be said, based on the Amended Complaint’s allegations regarding the bribery scheme, that but for the joint bid, WWE would not have foregone the millions in royalties it did. See Valley Prods. Co., Inc. v. Landmark, 128 F.3d 398, 404 (6th Cir.1997) (affirming dismissal: “The loss of logoed amenity sales suffered by Valley upon cancellation of its vendor agreement flowed directly from the cancellation, as we see it; the sales losses would have been suffered as a result of the cancellation whether or not HFS had entered into the alleged tying arrangements with the franchisees.”); Greater Rockford Energy, 998 F.2d at 402 (‘We ... find that as a matter of law, plaintiffs have failed to show with a fair degree of certainty that the antitrust violation was a material and substantial factor causing their alleged injuries”). Thus, the alleged antitrust violation, which does not include the bribes, is not alleged to have caused WWE’s injuries. Dismissal of this cause of action is therefore appropriate. See Hodges v. WSM, Inc., 26 F.3d 36, 39 (6th Cir.1994) (affirming dismissal of complaint: “Because plaintiffs did not allege, nor could they, that the illegal antitrust conduct was a necessary predicate of their injury or that defendants could exclude plaintiffs only by engaging in the antitrust violation, it was appropriate to dismiss the case pursuant to [Fed.R.Civ.P.] 12(b)(6).”); Indium Corp. of Am. v. Semi-Alloys, Inc., 566 F.Supp. 1344, 1354 (N.D.N.Y.1983) (granting motion to dismiss because complaint is “deficient in its statement of injury, and in its statement of the relationship between the alleged antitrust violation and its alleged injury”). III. Conclusion For" }, { "docid": "21949094", "title": "", "text": "monies received from Jakks in order to secure his assistance. (Am.ComplJ 97) In turn, Bell agreed to prohibit Acclaim from submitting a proposal to renew its video game license with WWE and to instead have the license awarded to Jakks. (Am.ComplJ 104) WWE contends that Bell failed to forward superior offers and proposals from Jakks’s competitors to WWE’s management in order to protect the scheme to award the license to Jakks. (Am. ComplJ 104) Specifically, according to the Amended Complaint, Bell tried to convince WWE management not to renew the video game license with Acclaim, tried to convince Acclaim not to bid, and submitted a deal memo recommending granting the license to Jakks without seeking any other bidders. (Am.Compl.U 107-08) Upon Bell’s recommendation, WWE informed Acclaim in April 1998 that it would not be renewing its license. (Am.ComplJ 115) In the meantime, one of WWE’s licensees for action figures, Playmates, had begun complaining in January 1997 that Jakks had been granted conflicting domestic rights by WWE. (Am.ComplJ 79) At the direction of Shenker and Jakks, and in order to eliminate competition against Jakks, Bell offered to absolve Playmates of the obligation of its guarantee to WWE if Playmates would give up its rights to produce action figures. (Am.Compl.U 80-83) WWE alleges that this agreement cost the company its guarantee and royalties above the guarantee. (Am.ComplJ 83) Jakks was also facing competition in bidding on the video game license from THQ, and a new bidder, Activision. (Am. CompLU 127-29) On March 30, 1998, Bell recommended that WWE accept Jakks’s offer for the video game license. (Am. ComplJ 110) Subsequently, without solicitation from Bell or Shenker, Activision and THQ emerged as potential bidders in early April 1998. (Am.Compl.U 127-29) In response, Bell and Shenker attempted to convince THQ and Activision not to bid, going so far as to refuse to provide them with prospective terms for a bid. (Am. ComplJ 129) Nevertheless, THQ and Ac-tivision submitted informal proposals which were superior to Jakks’s previously submitted proposal. (Am.ComplJ 131-32) In order to protect the bribery scheme, Shenker and/or Bell concealed the informal proposals" }, { "docid": "21949181", "title": "", "text": "Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988), it says nothing about whether that unreasonable restraint resulted in an antitrust injury to Plaintiff under the Clayton Act. See In Town Hotels Ltd. P’ship. v. Marriott Int’l, Inc., 246 F.Supp.2d 469, 475 (S.D.W.Va.2003) (“Even when the defendant’s conduct is presumed to injure competition, the question remains whether this particular plaintiffs injury was caused by the competition-reducing aspect of the defendant’s conduct.”). “To recover under the Clayton Act private plaintiffs must demonstrate that the injuries they suffered were caused by acts that had a competition-reducing effect.” Volmar Distribs., Inc. v. New York Post Co., 825 F.Supp. 1153, 1159 (S.D.N.Y.1993); see also Daniel, 428 F.3d at 438 (“The fact that private plaintiffs have been injured by acts that violate the antitrust laws is not enough to confer standing to sue.”). Under these standards, Plaintiffs Amended Complaint fails to allege an antitrust injury and fails to allege that but for Defendants’ joint bid, Plaintiff would not have suffered any such injury. Fairly read, the Amended Complaint describes in impressive detail an extensive and, if true, astounding commercial bribery scheme. The scheme initially only involved Jakks allegedly making improper payments to the Shenker Defendants to ensure that they steered whatever WWE licensing business they could to Jakks. After a while, however, it became apparent to Jakks and the Shenker Defendants that coopting Bell would be essential not only to the continuation of the toy licenses, but to the future acquisition of the lucrative video game license. What initially made Bell indispensable was Playmates’s effort to circumvent Shenker and make an appeal directly to WWE for a fair opportunity to bid on-WWE’s licenses. Thus, Bell was brought into the bribery scheme and allegedly did what he was paid to do — get Playmates to agree to a buy-out. Soon after the Playmates buy-out, Jakks and Shenker made a corrupt play for the video game license. The first phase involved using Bell to scare off the current license-holder, Acclaim, from seeking to put in a renewal bid. That" }, { "docid": "4185665", "title": "", "text": "at 104 (“Under the Sherman Act the criterion to be used in judging the validity of a restraint on trade is its impact on competition.”). 2. Antitrust Injury to Federal As regards Federal’s ability to buy wastepaper on competitive terms, the court finds nothing in the amended complaint which indicates that the kickback arrangements between Amata and some of the wastepaper suppliers foreclosed Federal from negotiating purchases with individual suppliers. Put another way, Federal has not suffered any antitrust injury with respect to its Sherman Act claim. Amata did not control Federal, nor is there any allegation that Amata and the suppliers paying him bribes could have prevented any other supplier from dealing with Federal had Federal attempted to purchase from such other supplier. A fair reading of the amended complaint indicates that the potential existed for Federal to obtain competitive prices from a wide range of suppliers. Of course, Amata’s disloyalty and Federal’s ignorance thereof resulted in depriving Federal from actually obtaining the benefits of competition among wastepaper suppliers. Nevertheless, there is no allegation that Federal could not have obtained the benefits of competition had it tried to do so. Indeed, as mentioned above, when Federal terminated Amata it did gain the benefits of a competitive market. When the only source of its injury is a disloyal employee, a plaintiff cannot complain of an antitrust injury in order to elevate claims based on an employee’s breach of fiduciary duty into Sherman Act claims. The absence of an antitrust injury is fatal to Federal's section 1 claim because in this case, where the alleged misconduct involved several suppliers selling to one purchaser, the lack of an antitrust injury to the purchaser reveals that the defendant’s activities did not have any anticompetitive effect at all in the relevant market. If a purchaser like Federal has the opportunity to buy from competing sellers at competitive prices, that purchaser cannot make the necessary showing that competition has been restrained. Since Federal cannot establish an \"impact on competitive conditions,” Ber-man Enter., 644 F.2d at 937, defendants’ conduct does not amount to a Sherman Act" }, { "docid": "4185653", "title": "", "text": "numerous competing suppliers of wastepaper.” In 1985, Federal discovered that Amata had been accepting bribes and kickbacks from the wastepaper suppliers with whom he had been dealing (including defendants Hershman, Automated, Goodman, Kirstein, and Tiffany). Federal alleges that Amata would not permit wastepaper suppliers who refused to pay him bribes to sell in significant amounts to the Sprague mill and that Amata suggested to the uncooperative suppliers that they sell their wastepaper to Amata’s favored suppliers who would then resell the wastepaper to Federal at a higher price. By 1985, Amata had concentrated the purchases of wastepaper so that the majority of the Sprague mill’s wastepaper came from the suppliers making payments to Amata. The cost of the bribes was passed on to Federal through the price charged for wastepaper sold to the Sprague mill. Following Amata’s discharge, Federal was able to purchase wastepaper at more favorable prices from a wider source of suppliers. In connection with Federal’s claim under section 1 of the Sherman Act, Federal alleges that Amata entered into conspiracies “between and among” the defendant wastepaper suppliers for the purposes of gaining commercial advantage, fixing prices of wastepaper supplied to the Sprague mill, and restraining competition. In connection with its Robinson-Patman Act claim, Federal alleges that the payments received by Amata were not for bona fide services rendered, but were commercial bribes. In connection with its RICO claim, Federal alleges that Amata “conspired, established, conducted, and participated” with the defendant wastepaper suppliers, both individually and as a group, in enterprises engaged in a pattern of racketeering activity. Federal also alleges that Amata participated in the affairs of Federal through a pattern of racketeering activity. The purposes of the alleged enterprises included fixing the price of wastepaper supplied to the Sprague mill, reducing competition among the suppliers of wastepaper to the Sprague mill, and defrauding Federal. As predicate acts for the RICO count, Federal alleges violations of the federal mail fraud and wire fraud statutes, 18 U.S. C. §§ 1341 and 1343 (1982), and the Hobbs and Travel Acts, 18 U.S.C. §§ 1951 and 1952 (1982 & Supp." }, { "docid": "21949183", "title": "", "text": "apparently worked because Acclaim faded from the picture before there was' any Jakks/THQ joint bid. The next phase involved Shenker and Bell making a concerted effort to not solicit any bids for the video game license from any company other than Jakks. Initially, this also worked as WWE, based on the recommendations of the allegedly crooked Bell and Shenker, accepted the Jakks bid. However, the alleged schemers did not anticipate two unsolicited bidders (Activision and THQ), who appeared determined to get their potential bids to WWE management. Specifically, concerned that any such end-run to WWE management would expose the bribery scheme, (Am.CompU 137) Jakks approached THQ, told it that the bid was fixed, and convinced THQ to join in the scheme or face certain defeat in the bidding process. The Amended Complaint says nothing of what happened to Activision, other than that its formal bid, which the Amended Complaint acknowledges was more lucrative than what WWE accepted, was blocked by Bell and Shenker from getting to WWE management. Because this bid never made its way to WWE management, according to the Amended Complaint, WWE suffered the loss of millions of dollars of royalties. As alleged, it is clear that Plaintiff has not suffered from an antitrust injury. Even if Defendants intended to engage in a bid-rigging scheme, and that scheme had a “competition-reducing effect” — both dubious assumptions — nothing about Jakks’s cooptation of THQ, even in combination with the bribery scheme, prevented WWE from negotiating licensing agreements with other vendors. As such this case is virtually identical to Fed. Paper Bd. Co. v. Amato, 693 F.Supp. 1376 (D.Conn.1988). In Amata, plaintiffs employee, Amata, took bribes from suppliers in return for him recommending sales to plaintiff. Id. at 1380. The price at which plaintiff purchased its supplies concededly was inflated as a result of the bribes, thus plainly causing plaintiff economic injury. Id. Yet, the Amata court, in granting the motion to dismiss, held that there was no antitrust injury because there was no allegation that non-bribing suppliers could not compete, or that plaintiff could not purchase from non-bribing suppliers." }, { "docid": "21949185", "title": "", "text": "Id. at 1383-84 (finding no claim in the complaint to suggest that suppliers who refused to pay bribes to Amata were “precluded from taking competitive actions in order to secure sales with Federal” or that “Amata and the suppliers paying him bribes could have prevented any other supplier from dealing with Federal”). The court recognized (as does this Court) that the bribes were unfair competition, but that alone did not make them an actionable restraint on trade under § 4 of the Clayton Act. Id. at 1383; see also Calnetics Corp. v. Volkswagen, 532 F.2d 674, 687 (9th Cir.1976) (finding no antitrust injury where there were allegations of commercial bribery without allegations of other acts tending to restrain trade); Sterling Nelson & Sons, Inc. v. Rangen, Inc., 235 F.Supp. 393 (D.Idaho 1964) (finding no antitrust injury where influential state employee' was bribed to steer contracts to a particular company). Plaintiffs allegation that Jakks and THQ engaged in bid rigging and price fixing does not change the analysis, because THQ and Jakks were only two of several competitors for the video game license. As in Amata, WWE failed to demonstrate how the joint bid, even combined with the bribery of Shenker and Bell, prevented competitive bids from being offered to, or accepted by, WWE’s management. Indeed, the allegations in the Amended Complaint are even more problematic for Plaintiff here than in Ama-ta because the Amended Complaint identifies competitors that were active in the bidding process for the video game licenses. Acclaim and Activision submitted proposed bids to Plaintiff despite Bell’s and Shenker’s attempts to discourage them from bidding. Given these allegations, the Amended Complaint fails to allege how the mere submission of the joint bid, by itself, caused antitrust harm to WWE. Put another way, even if the joint bid was artificially low, there is no allegation that WWE was forced to accept that bid. Plaintiff counters by asserting that it suffered an antitrust injury because it was the victim of a bid-rigging conspiracy. Implicit in Plaintiffs argument is that all bid-rigging schemes necessarily deprive the “other party to the transaction" } ]

[ { "docid": "3633193", "title": "", "text": "Cuaron and Mabry we found that the agents had reasonable grounds to believe that the defendants may become alarmed and destroy the drugs or leave with the cocaine and buy money. Cuaron, 700 F.2d at 590 and Mabry, 809 F.2d at 678. The same concerns existed in the case at bar after Garcia and Gurule’s arrest. Thus, the officers were armed with probable cause and exigent circumstances. The warrantless entry and the “protective sweep” to ascertain whether there were persons other than the four occupants on the premises who might pose a danger to the officers and to secure the garage were justified. See Mabry, 809 F.2d at 678. . Defendant Chavez also asserts that the decision in United States v. Cuaron, 700 F.2d at 586-87, mandates that the government bears. the burden of submitting evidence regarding the availability of a' telephone warrant, the time necessary to obtain a telephone warrant, and the reason no telephone warrant was sought to justify their warrantless entry. We note that in determining whether exigent circumstances existed to excuse the warrantless entry, the trial court did not assess the possibility of obtaining a warrant by telephone. We are cognizant of the fact that the time necessary to obtain a warrant is relevant to a determination of whether circumstances are exigent. United States v. Cuaron, 700 F.2d 582, 589 (10th Cir.1983). We find, however, that our determination on the possibility of obtaining of a telephone warrant in this case can be distinguished from the determination made in United States v. Cuaron. In United States v. Cuaron, we stated that Rule 41(c) of the Federal Rules of Criminal Procedure demonstrates that Congress intended to encourage police to procure telephone warrants where the existence of an exigent circumstance is a close question. Id. at 588. The government bears no burden in this case of acting in accordance with Rule 41(c) as this investigation and search was conducted purely by state officials. The testimony of Arturo Gonzales, an agent with the Federal Bureau of Investigation, makes clear that there was no federal involvement in the search until after" } ]

[ { "docid": "6932742", "title": "", "text": "could reasonably and sensibly be read to include Singer’s garage, thereby removing the facial inconsistency on which Singer relies. Singer relies heavily upon United States v. Bennett, 905 F.2d 931 (6th Cir.1990). Bennett, however, presents a different case, for there the affiant himself testified that the challenged statements were false. Bennett, 905 F.2d at 934. As in Namer but not in Hare or the present case, “the challenged statement could not reasonably have been read in a truthful way.” Hare, 772 F.2d at 141. The district court did not err in rejecting Singer’s argument. Singer next contends that the involvement of federal authorities, along with California and Texas police officers, in the investigation made it federal, subject to the strictures of the Federal Rules of Criminal Procedure. Asserting that the officers conducting the search of his residence did not comply with Rule 41(a), Singer argues that the evidence obtained from his residence must therefore be suppressed. The warrant authorizing the search of Singer’s residence was issued by a state judge at the request of a state police officer. In United States v. McKeever, 905 F.2d 829, 833 (5th Cir.1990) (en banc), this Court held that “Rule 41 only applies to warrants issued upon the request of a federal law enforcement officer or attorney for the government.” The district court properly held that Rule 41(a) does not apply in this case. See also United States v. Shaw, 920 F.2d 1225, 1229 (5th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2038, 114 L.Ed.2d 122 (1991). Singer attempts to escape the effect of McKeever’s broad rule by asserting that here there was collusion between state and federal officers, an issue the McKeever court left open. 905 F.2d at 833 (“No issue of collusion between state and federal officers in procuring the warrant to avoid Rule 41 is implicated in this case.”). Cooperation among federal and state authorities does not, however, constitute the sort of “collusion” cited in McKeever. McKeever itself held that “no issue of collusion ... is implicated” even though federal authorities joined state officers in executing the very search at" }, { "docid": "20585491", "title": "", "text": "the affiant intended to mislead the magistrate by omitting information, and because the warrant with the omitted information would in any event have been supported by probable cause....” Id. Similarly here, Jordan has not shown that the affiant intended to mislead the magistrate by omitting, or was reckless in omitting, information that tended to exculpate Jordan as to the robberies of January 22, 2011. We find no reason to set aside our presumption that the challenged warrant affidavit was valid and therefore find no reversible error in the district court’s decision to admit evidence seized during the searches of Jordan’s home. B. Citing Rule 41(f)(1) of the Federal Rules of Criminal Procedure, Jordan next argues that the first search warrant was defective because the affiant, Detective Woerner, falsely certified in the return that he executed the warrant. Rule 41(f)(1) provides that “[a]n officer present during the execution of the warrant must prepare and verify an inventory of any property seized” and that “[t]he officer executing the warrant must promptly return it — together with a copy of the inventory — to the magistrate judge designated on the warrant.” By its own terms, however, Rule 41 applies only to federal search warrants requested by “a federal law enforcement officer” or “an attorney for the government^]” Fed.R.Crim.P. 41. This Court has held that “a warrant proceeding must meet the particulars of Rule 41 only where the warrant application was made at the direction or urging of a federal officer.” United States v. Clyburn, 24 F.3d 613, 616 (4th Cir.1994) (citations and internal quotation marks omitted). We have also held that “[n]on-constitutional violations of Rule 41 warrant suppression only when the defendant is prejudiced by the violation ... or when ‘there is evidence of intentional and deliberate disregard of a provision in the Rule[.]’ ” United States v. Simons, 206 F.3d 392, 403 (4th Cir.2000) (citations omitted). The warrants Jordan challenges were prepared and executed by local law enforcement officers, not federal agents. Thus, any defect in the return cannot serve as a basis for suppression. Even if Rule 41 applied, however, Jordan" }, { "docid": "23707655", "title": "", "text": "search warrant will be destroyed, moved or concealed....” Okla. Stat. tit. 22 § 1230(3). He ignores, however, the first exception, which encompasses cases in which “[t]he evidence is located on the premises only between the hours of ten o’clock p.m. and six o’clock a.m.” Id. § 1230(1). Notably, the magistrate judge in this case found in his report and recommendation, and Barrett has not disputed below or on appeal, that “[t]he underlying affidavit set forth facts indicating that the only time drug evidence would be found [at Barrett’s residence] was at night.” ROA, Vol. 1, Doc. 105 at 11. Thus, it is clear that the first statutory exception was applicable in this case and allowed the judge who issued the search warrant to allow the warrant to be served at night time. In other words, there was no violation of Oklahoma state law, let alone a federal constitutional violation that would justify suppression of the evidence seized from Barrett’s residence. See Mikulski, 317 F.3d at 1232. b) Failure of warrant to satisfy Oklahoma standards regarding executing officers Barrett next complains that the search of his residence was improper because the original search warrant was executed by federal law enforcement officers (i.e., DEA task force members) rather than by Oklahoma state law enforcement officers. In support of his argument, Barrett points to Okla. Stat. tit. 22 § 1225(A), which provides, in pertinent part, that a search warrant must be issued “to a peace officer of this state.... ” Because Barrett failed to raise this issue below, it is subject to review only for plain error. At the outset, we conclude that Barrett has failed to properly interpret § 1225(A). Specifically, the term “peace officer,” as used in the Oklahoma criminal statutes, is expressly defined to “meant ] any sheriff, police officer, federal law enforcement officer, or any other law enforcement officer whose duty it is to enforce and preserve the public peace.” Okla. Stat. tit. 21 § 99 (emphasis added). Applying that definition to § 1225(A), it is clearly permissible for an Oklahoma state magistrate to issue a search warrant to" }, { "docid": "660607", "title": "", "text": "“Police Officer of Baltimore City.” Even though he was also deputized as a federal officer for purposes of participating in the joint task force, the warrant was directed to a police officer of Baltimore City or Baltimore County. While state law might well authorize a judicial officer to issue a warrant to a federal officer to execute, making closer the question of whether the federal officer requested the warrant under Rule 41(b), in this case that argument is foreclosed because the state judicial officer issued the warrant to a Baltimore City police officer for execution. Even if the warrant was directed more generally to any authorized officer, the fact that it commanded a search for evidence of a state-law violation would indicate that the warrant proceeding was a state proceeding, not one under Federal Rule 41(b). In this case, we readily conclude that the application for the search warrant initiated a state proceeding governed by state law and that it was not a federal proceeding governed by Rule 41(b). This is indicated further by the fact that the state judge commanded Detective Gladstone to make his return to the state judge, not to a federal magistrate judge, as he would have done under Rule 41. See Fed.R.Crim.P. 41(f)(1)(D). Moreover, there is ho evidence that the return was then forwarded to the Clerk in the federal court, as would have been done had the proceeding been conducted under Rule 41. See Fed.R.Crim.P. 41(i). Our conclusion that this was a state warrant proceeding governed by state law is consistent with the notion that Mary land confers authority to issue warrants independent of the authority conferred by Rule 41(b). See Sellers, 483 F.2d at 43. Because we conclude that the legal authorization for the search warrant in this case was Maryland law, not Rule 41(b), we reject Claridy’s argument that the evidence should |oe suppressed because its issuance did not comply with the requirements of Rule 41(b). Alternatively, if we were to assume, for purposes of discussion, that Rule 41(b) was applicable — presumably based on the facts deemed important by Claridy that" }, { "docid": "2116982", "title": "", "text": "warrant issued upon written affidavit, “may be based upon hearsay evidence in whole or in part”, Fed.R.Crim.P. 41(c)(1); see Fed.R.Crim.P. 41(c)(2)(C), provided the magistrate, as here, is made aware of the circumstances underlying the affiant’s statements, see Illinois v. Gates, 462 U.S. 213, 241-42, 103 S.Ct. 2317, 2333-34 76 L.Ed.2d 527 (1983). Because the utility of telephonic search warrants would be emasculated if an attorney for the government could not act as both affiant and applicant — passing along to the magistrate information learned from officers in the field — we reject Segovia’s argument. Rule 41 procedures were fully complied with in this instance. Segovia next argues that the search warrant was executed in contravention of the magistrate’s specific directions. In authorizing a nighttime search, Magistrate Chrein directed that “the search is to be conducted * * * within an hour of the arrival of the narcotics * * * in other words I don’t want narcotics to come in at 10:00 and you to conduct the search at 3:00 in the morning.” Segovia contends that because the officers at the scene knew that one kilogram of cocaine had been delivered by 8:20 p.m., their execution of the warrant at some time between 9:30 and 10:00 p.m. violated this express restriction. Although the exact time of execution of the warrant is not established, even appellant agrees that it was at approximately 10:00 p.m. In light of this admission, we could simply decide that the nighttime restriction was inapplicable, since rule 41- provides that “[t]he term ‘daytime’ is used in this rule to mean the hours from 6:00 a.m. to 10:00 p.m. according to local time.” Fed.R.Crim.P. 41(h). Passing over this narrow ground, however, we hold that the district judge was correct in finding that the officers, not having any reason to anticipate a piecemeal delivery of the cocaine, acted reasonably when they waited for delivery of the second kilogram. Their delay in light of the new information about the second kilogram was a reasonable interpretation of the limitation to execute the warrant within one hour of the arrival of the" }, { "docid": "17859092", "title": "", "text": "asked to decide whether Comstock’s Fourth Amendment rights have been infringed. Comstock does not claim that the search warrant was issued on other than a proper showing of probable cause, that the affidavit supporting it was false, that the issuing magistrate was insufficiently competent or neutral, or that the search was otherwise unreasonable. He contends only that evidence must be suppressed because the state court search warrant was not issued by a court of record as required by Rule 41(a). On its face, Rule 41 appears to govern the validity of only federal search warrants requested by and issued to federal law enforcement officers, not of state warrants sought by and issued to local police, as occurred in this case: “A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property or person sought is located, upon request of a federal law enforcement officer or an attorney for the government. “... The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States_” Fed.R.Crim.P. 41(a) & 41(c)(1) (emphasis added). Past decisions of this Court, however, have applied Rule 41(a)’s court of record requirement to exclude in a federal prosecution evidence obtained under an otherwise valid state search warrant, requested by and issued to state officers on a showing of state law violation, where the issuing court was not a court of record and federal officers participated in the search. In Navarro v. United States, 400 F.2d 315 (5th Cir.1968), this Court required suppression of evidence under Rule 41(a) after a Texas city corporation court — not a court of record — issued a warrant at the behest of local police officers, respecting a heroin possession offense. The warrant was executed by two federal agents and two non-federal officers, and the incriminating evidence was discovered by the latter in the presence of the federal agents. Navarro was then arrested" }, { "docid": "2116981", "title": "", "text": "federal law enforcement officer or an attorney for the government”, Fed.R.Crim.P. 41(a) (emphasis added), and the term “attorney for the government” specifically includes “an authorized assistant of a United States Attorney”, Fed.R.Crim.P. 54(c). Nowhere in rule 41 is an assistant United States attorney prohibited from acting as both applicant and affiant for the search warrant. Indeed, it is clear from the advisory committee notes to rule 41 that the opposite is true: The applicant must orally state facts sufficient to satisfy the probable cause requirement for the issuance of the search warrant. * * * This information may come from either the applicant federal law enforcement officer or the attorney for the government or a witness willing to make an oral statement. Fed.R.Crim.P. 41 advisory committee note (1977 amendment) (emphasis added); see also United States v. Iparraguirre, 628 F.Supp. 831, 834 (E.D.N.Y.1986). It is not necessary that an officer on the scene serve as affiant for the warrant because probable cause for the issuance of a search warrant upon oral application, just as with a warrant issued upon written affidavit, “may be based upon hearsay evidence in whole or in part”, Fed.R.Crim.P. 41(c)(1); see Fed.R.Crim.P. 41(c)(2)(C), provided the magistrate, as here, is made aware of the circumstances underlying the affiant’s statements, see Illinois v. Gates, 462 U.S. 213, 241-42, 103 S.Ct. 2317, 2333-34 76 L.Ed.2d 527 (1983). Because the utility of telephonic search warrants would be emasculated if an attorney for the government could not act as both affiant and applicant — passing along to the magistrate information learned from officers in the field — we reject Segovia’s argument. Rule 41 procedures were fully complied with in this instance. Segovia next argues that the search warrant was executed in contravention of the magistrate’s specific directions. In authorizing a nighttime search, Magistrate Chrein directed that “the search is to be conducted * * * within an hour of the arrival of the narcotics * * * in other words I don’t want narcotics to come in at 10:00 and you to conduct the search at 3:00 in the morning.” Segovia contends" }, { "docid": "23295069", "title": "", "text": "2d Sess. 19-26 (1976). The amended rule alone is reprinted in 96 S.Ct., Adv. Sheet No. 15, at 4-5 (1976). The amended version of Rule 41(c) provides, in full, as follows: Rule 41. Search and seizure (c) Issuance and Contents. (1) Warrant Upon Affidavit. A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affi-ant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified. The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It shall designate a federal magistrate to whom it shall be returned. (2) Warrant Upon Oral Testimony. When the circumstances make it reasonable to do so in the absence of a written affidavit, a search warrant may be issued upon sworn oral testimony of a person who is not in the physical presence of a federal magistrate provided the federal magistrate is satisfied that probable cause exists for the" }, { "docid": "2116980", "title": "", "text": "Vanerio was acquitted by the jury. Nelson contends that all physical evidence seized during the search of his apartment should have been suppressed. First, he argues that the warrant — issued upon oral testimony given over the phone— authorizing a search of his apartment was improperly granted because an assistant United States attorney, rather than an agent in the field, acted as affiant for that warrant. Second, he claims that the execution of the warrant violated the specific time restriction imposed by the issuing magistrate. Finding no merit to his contentions, we affirm. A federal magistrate may issue a warrant based upon sworn oral testimony given over the telephone in appropriate circumstances. Fed.R.Crim.P. 41(c)(2)(A). Segovia argues that because AUSA Rose, rather than an agent on the scene, acted as affiant for the warrant, “the Magistrate [did not have] an ample opportunity to examine and probe all aspects in support of the oral affidavit”. Appellant’s brief at 16. Nevertheless, rule 41 expressly provides that a telephonic search warrant may properly be issued “upon request of a federal law enforcement officer or an attorney for the government”, Fed.R.Crim.P. 41(a) (emphasis added), and the term “attorney for the government” specifically includes “an authorized assistant of a United States Attorney”, Fed.R.Crim.P. 54(c). Nowhere in rule 41 is an assistant United States attorney prohibited from acting as both applicant and affiant for the search warrant. Indeed, it is clear from the advisory committee notes to rule 41 that the opposite is true: The applicant must orally state facts sufficient to satisfy the probable cause requirement for the issuance of the search warrant. * * * This information may come from either the applicant federal law enforcement officer or the attorney for the government or a witness willing to make an oral statement. Fed.R.Crim.P. 41 advisory committee note (1977 amendment) (emphasis added); see also United States v. Iparraguirre, 628 F.Supp. 831, 834 (E.D.N.Y.1986). It is not necessary that an officer on the scene serve as affiant for the warrant because probable cause for the issuance of a search warrant upon oral application, just as with a" }, { "docid": "5935963", "title": "", "text": "U.S. 581, 585-587, 68 S.Ct. 222, 92 L.Ed. 210, 216 (1948). 2. The house search The basis for the motion to suppress fruits of the house search was failure of the warrant to name the executing officer and the affiant. On the night of January 4 Agent Richel, accompanied by two government attorneys, appeared before a magistrate and secured a warrant to search the Betancourt residence. Ri-chel then radioed agents surveilling the residence that he had secured a search warrant and was en route to serve it. Before he arrived the surveilling agents knocked on the door of the house, and when Betancourt answered they placed her and the other occupants under arrest. The search that yielded the allegedly tainted evidence was not made until Richel’s arrival with the warrant. Rule 41(c), Fed.R.Crim.P., provides in part: “The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States.” Appellees’ argument appears to be that because the warrant violated this provision, which has the force of statute, see Bacon v. United States, 449 F.2d 933, 937 n. 3 (CA9 1971), evidence taken during execution of the warrant was illegally seized and thus suppressible under Rule 41(e). We do not understand the basis for the motion to be that the warrant contravened the fourth amendment itself, which by its terms does not require that the warrant be directed to a specific officer. Whether historically or by contemporary usage, the requirement that the serving officer be named in the warrant has come to protect several important interests. As the court explained in United States v. Gannon, 201 F.Supp. 68 (D.Mass.1961), one of its functions is to fix responsibility in the event the warrant is not executed. Also, it enables the magistrate to make a pre-search determination that an appropriate officer will serve the warrant. It assists the person whose premises are to be searched in ensuring that the search will be made by an authorized officer and not by" }, { "docid": "11918142", "title": "", "text": "the district — or if none is reasonably available, a judge of a state court of record in the district — has authority to issue a warrant to search for and seize a person or property located within the district....” FED. R. CRIM. P. 41(b)(1) (emphasis added). While the Court concludes today that a bankruptcy trustee has a sufficient nexus to the government for purposes of the Fourth Amendment, it is clear that a bankruptcy trustee is not an attorney employed by or representing the government. Further, Federal Rule of Criminal Procedure 41(a)(2)(C) defines a “federal law enforcement officer” as “a government agent (other than an attorney for the government) who is engaged in enforcing the criminal laws and is within any category of officers authorized by the Attorney General to request a search warrant.” FED. R. CRIM. P. 41(a)(2)(C) (emphasis added). Clearly, a bankruptcy trustee does not satisfy the definition of a federal law enforcement officer under Federal Rule of Criminal Procedure 41 for the following three reasons: (1) a bankruptcy trustee is not an “agent” of the government; (2) a bankruptcy trustee is not “engaged in enforcing” the criminal laws; and (3) a bankruptcy trustee is not authorized by the Attorney General of the United States to request a search warrant. Consequently, a bankruptcy trustee does not have the capability of applying for a search warrant under Federal Rule of Criminal Procedure 41. See In re Application of Tr. in Bankr. for a Search Warrant, 173 B.R. at 342 (holding that a bankruptcy trustee failed to satisfy the criteria for either an attorney for the government or a federal law enforcement officer under Federal Rule of Criminal Procedure 41; consequently the trustee failed to show “that he has the authority to apply for issuance of a search warrant”). Moreover, the request by a bankruptcy trustee for an order to search a debtor’s residence for undisclosed property belonging to the bankruptcy estate also does not fall under the categories of persons or property subject to search or seizure under Federal Rule of Criminal Procedure 41. Federal Rule of Criminal" }, { "docid": "660600", "title": "", "text": "or urging from [federal] Agent Kennedy, the only federal agent who accompanied the [state] officers during their arrest of appellants and search of the apartment”); id. (finding that there was also no showing that the state officers “initially intended to prosecute the case federally,” as argued by the appellant). Thus, we have in our earlier cases recognized, at most, that Rule 41 requires at least that a federal law enforcement officer, or someone at his direction or urging, apply for a warrant covered by the Rule. See Fed.R.Crim.P. 41(b). But we have not gone further to state the standard for when Rule 41 applies in obtaining search warrants diming the course of a joint federal-state law-enforcement investigation into violations of both federal and state law or to state from where the standard is to be derived. We begin in this case by noting that the Federal Rules of Criminal Procedure, including Rule 41, govern “criminal proceedings” in the United States courts and, “[w]hen a rule so states,” proceedings before state and local judicial officers. Fed. R.Crim.P. 1(a) (emphasis added). . Rule 41(b) is such a rule, authorizing state judges to issue search warrants if a federal magistrate judge is not “reasonably available.” See also Fed.R.Crim.P. 3 (authorizing state judges to administer oaths for the issuance of a criminal complaint); Fed. R.Crim.P. 4(b)(1)(C), (c)(4)(A) (authorizing return of arrest warrants to state judges); Fed.R.Crim.P. 5(c)(1)(B) (authorizing state judges to conduct initial appearances after arrests). When a state judge acts under the authority of a federal rule, the “proceeding” is a federal proceeding. See Fed. R.Crim.P. 1(a)(2). Despite the arguments made to us in this case, and indeed in the other earlier cases cited, urging us to focus almost entirely on the character of the investigation in which the search warrant was obtained, see Williams, 977 F.2d at 870; Smith, 914 F.2d at 569; Johnson, 451 F.2d at 1322, the triggering condition for application of Rule 41 is not a finding that the investigation was federal in nature but a determination that the proceeding was a federal proceeding. Criminal investigations are not “proceedings”" }, { "docid": "5399409", "title": "", "text": "proceedings.” Title 28 U. S.C. § 636(a) (Supp.1972) provides that “Each United States magistrate shall have ... (1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts. . . .” Rule 41, F.R.Cr.P., authorizes magistrates to issue search warrants under certain circumstances and pursuant to certain procedures. Thus, if the instant proceedings fit within the confines of Rule 41, Magistrate Schiffman clearly had jurisdiction. Rule 41 provides in pertinent part that: “(a) A search warrant authorized by this rule may be issued by a federal magistrate . . . upon request of a federal law enforcement officer or an attorney for the government. * * * * •>:• * “(c) A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant. . . . The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce. . . . ” It is settled that the procedures prescribed by Rule 41 may be invoked prior to the filing of an indictment. See The Fifth Avenue Peace Parade Committee v. Hoover, 327 F.Supp. 238, 242 (S.D.N.Y.1971); Donlon v. United States, 331 F.Supp. 979 (D.Del.1971). Cf. DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). Indeed more often than not the warrant is used to obtain the evidence required to institute criminal proceedings. The government argues that where, as here, the First Amendment requires, for the protection of those whose property is the subject of a proposed seizure, the prior holding of an adversary hearing, Rule" }, { "docid": "23295234", "title": "", "text": "States v. Impson, 531 F.2d 274, 277 (5th Cir. 1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 803 (1978). Under our supervisory power over the judicial process, we could require a new trial free from prejudicial error if we made such a determination. See United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). . The affidavits supporting both warrants were identical. . Fed.R.Crim.P. 41(a) provides: “A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property or person sought is located, upon request of a federal law enforcement officer or an attorney for the government.” . Fed.R.Crim.P. 41(c)(1) provides: “(1) Warrant upon Affidavit. A warrant other than a warrant upon oral testimony under paragraph (2) of this subdivision shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property or person to be seized and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for" }, { "docid": "23401169", "title": "", "text": "were simultaneously state and federal crimes, was a joint undertaking between the Kentucky police and the FBI from the beginning. According to the FBI agent who testified at the suppression hearing, “We work them together.” Asked which agency initiated the investigation, he stated that it was “kind-of a simultaneous thing. We just kind-of did it together.” An FBI agent was the affiant who swore to the facts supporting the issuance of the warrant, there were five FBI agents present at the search, and a federal agent directed the conduct of the search. This was a federal search for evidence of a federal crime conducted by federal officers. In such a case the fact that the search is also a state search cannot affect the federal agents’ duty to comply with the federal rules. II. Rule 41(c)(1), Fed.R.Crim.P., provides that a search warrant “shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime.” We cannot agree with the district court’s ruling that these requirements were satisfied by the affidavit and warrant in this case. The federal Rule requires explicit authorization for a night search, and “reasonable cause shown” to the issuing magistrate justifying the unusual intrusion of a search at night. The Rule recognizes that there are times when a night search is necessary; if, for instance, execution would be impossible in the daytime or the property sought is likely to be destroyed or removed before daylight. The Rule requires only some factual basis for a prudent conclusion that the greater intrusiveness of a nighttime search is justified by the exigencies of the situation. The procedural requirements of the Rule ensure that the fact that a nighttime search is contemplated by the police is brought to the attention of a magistrate and that he or she consciously decide whether such a particularly abrasive intrusion is called for in a given situation. In this case, even if we were to accept the argument that the preprinted word “immediately” meant more than the phrase" }, { "docid": "11918141", "title": "", "text": "387 U.S. at 538, 87 S.Ct. 1727). . The circumstances of this case present such a special circumstance. In a typical case, prior to searching an individual's residence and seizing any illicit property contained therein a search warrant must be obtained in accordance with Federal Rule of Criminal Procedure 41. In fact, the Debtor in this case contends that the Trustee’s conduct violated the Fourth Amendment because she failed to comply with Federal Rule of Criminal Procedure 41. (See Debtor Opp., pp. 11-15). However, by its own terms Federal Rule of Criminal Procedure 41 does not apply to a bankruptcy trustee in the context of a civil search and seizure order whereby the trustee is attempting to uncover property of the bankruptcy estate intentionally hidden or undisclosed by the debtor for liquidation and distribution to creditors in accordance with the Bankruptcy Code. Federal Rule of Criminal Procedure 41(b)(1) provides in pertinent part that: \"[a]t the request of a federal law enforcement officer or an attorney for the government: (1) a magistrate judge with authority in the district — or if none is reasonably available, a judge of a state court of record in the district — has authority to issue a warrant to search for and seize a person or property located within the district....” FED. R. CRIM. P. 41(b)(1) (emphasis added). While the Court concludes today that a bankruptcy trustee has a sufficient nexus to the government for purposes of the Fourth Amendment, it is clear that a bankruptcy trustee is not an attorney employed by or representing the government. Further, Federal Rule of Criminal Procedure 41(a)(2)(C) defines a “federal law enforcement officer” as “a government agent (other than an attorney for the government) who is engaged in enforcing the criminal laws and is within any category of officers authorized by the Attorney General to request a search warrant.” FED. R. CRIM. P. 41(a)(2)(C) (emphasis added). Clearly, a bankruptcy trustee does not satisfy the definition of a federal law enforcement officer under Federal Rule of Criminal Procedure 41 for the following three reasons: (1) a bankruptcy trustee is not" }, { "docid": "23653615", "title": "", "text": "designate the district judge or the commissioner to whom it shall be returned. ■ “(g) Scope and Definition. This rule does not modify any act, inconsistent witlj it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term ‘property’ is used in this rule to include documents, books, papers and any other tangible objects.” Rule 41 has since been amended to read, in part: “(a) Authority to issue warrant. A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state within the district wherein the property sought is located, upon request of a federal law enforcement officer or an attorney for the government. “(b) Property which may be seized with a warrant. A warrant may be issued under this rule to search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or. intended for use or which is or has been used as the means of committing a criminal offense. “(e) Issuance and contents. A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds. for- issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to a civil officer of" }, { "docid": "5935980", "title": "", "text": "which the government insists that the subject of the search was the luggage, not the car. . In pertinent part the warrant read as follows: “To__ “Affidavit having been made before me by - that he is positive that on the premises known as One floor dwelling at 3520 SW 4th St., Miami, Fla..... there is now being concealed certain property . . . which [is] in violation of Title 21 U.S.O. § 841 (Al) and as I am satisfied that there is probable cause to believe that the property so described is being concealed on the premises above described and that the foregoing grounds for application for issu- anee of the search warrant exist “You are hereby commanded to search forthwith the place named for the property specified, serving this warrant and making the search at any time in the day or night . . . . ” . This requirement survived intact the 1972 amendments to the Rules of Criminal Procedure. . In Gannon Judge Wyzanski inferred that fixing responsibility for nonexecution was the sole reason for naming the serving officer.. As our textual discussion shows, we do not agree that this is the only reason. In his analysis Judge Wyzanski considered the relationship of Rule 41(c) to 18 U.S.C. § 3105, which provides: “A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.” He concluded that read together the provisions created two classes of officers authorized to execute the warrant: “(1) those mentioned in the warrant, and, additionally, (2) those officers authorized by law [to execute it].” 201 F.Supp at 71. In this case we do not reach the question whether § 3105 broadens Rule 41(c) by allowing non-named officers to execute the warrant, since we hold infra that the Rule’s requirements were substantively satisfied. . Appellees rely on three principal eases: Perry v. United" }, { "docid": "6932741", "title": "", "text": "court should not have admitted the fruits of this search into evidence. Singer’s argument rests on an apparent discrepancy between the affidavit and a DEA report. Officer Sullivan’s affidavit states that “Bater [sic] further stated that ... Singer told Bater that he maintained supplies of cocaine at his residence.” The DEA report contains this statement: “[Blank] reports that Singer does not keep his supply of cocaine inside his residence. Singer supposedly conceals the cocaine in a storage safe built into the floor of his garage or keeps it at this girlfriend’s residence.” The district court concluded that the challenged statement was not false and denied the motion to suppress. We cannot disagree. As this court stated in United States v. Hare, 772 F.2d 139, 141 (5th Cir.1985), “[a] statement in a warrant affidavit is not false merely because it summarizes or characterizes the facts in a particular way.” As in Hare, we find that the “challenged statement, though ambiguous, reasonably could and should be read truthfully.” Hare, 772 F.2d at 141. Here, the term “residence” could reasonably and sensibly be read to include Singer’s garage, thereby removing the facial inconsistency on which Singer relies. Singer relies heavily upon United States v. Bennett, 905 F.2d 931 (6th Cir.1990). Bennett, however, presents a different case, for there the affiant himself testified that the challenged statements were false. Bennett, 905 F.2d at 934. As in Namer but not in Hare or the present case, “the challenged statement could not reasonably have been read in a truthful way.” Hare, 772 F.2d at 141. The district court did not err in rejecting Singer’s argument. Singer next contends that the involvement of federal authorities, along with California and Texas police officers, in the investigation made it federal, subject to the strictures of the Federal Rules of Criminal Procedure. Asserting that the officers conducting the search of his residence did not comply with Rule 41(a), Singer argues that the evidence obtained from his residence must therefore be suppressed. The warrant authorizing the search of Singer’s residence was issued by a state judge at the request of a" }, { "docid": "8765990", "title": "", "text": "to establish probable cause for the search by offering the testimony of officer Swanson and another police officer as to what Swanson testified to before the magistrate. It is urged that the unrecorded sworn testimony of Swanson, if admitted, would establish sufficient underlying circumstances from which a magistrate could conclude that the informant’s information was accurate. The federal rules and the Kansas statutes both permit the issuing magistrate, in addition to considering the affidavit, to examine the affiant and any additional witnesses before ruling on a request for a search warrant. Fed.R.Crim.P. 41(c) provides, in part: “Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceedings shall be taken down by a court reporter or recording equipment and made part of the affidavit. ...” K.S.A. 22-2502(2)(b) provides: “(b) Before ruling on a request for a search warrant, the magistrate may require the affiant to appear personally and may examine under oath the affiant and any witnesses he or she may produce. Such proceeding shall be taken down by a certified shorthand reporter or recording equipment and made part of the application for a search warrant.” History: K.S.A. 22-2502; L.1976, ch. 164, § 1; July 1. Federal Rule 41(c) was amended in October, 1972 to provide for recording of oral testimony and incorporation of the recording into the affidavit. The Kansas rule was amended to the same effect in July, 1976. The amendments of both rules are applicable to the case at bar. The underlying rationale of the amendment to Rule 41(c) is important, and the note to the amendment is instructive: “. . .If testimony is taken it must be recorded, transcribed, and made part of the affidavit or affidavits. This is to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if that question should later arise.” Fed.R. Crim.P. 41(c). It is apparent the reason for adopting this procedural safeguard is" } ]

[ { "docid": "12327019", "title": "", "text": "relevant market. It failed to prove that any of the corporate defendants had the requisite monopoly power or any intent to monopolize, coupled with a “dangerous probability” of success. Lorain Journal Co. v. United States, 342 U.S. 143, 153 (1951); Swift & Co. v. United States, 196 U.S. 375, 396 (1905). Since there was a total failure of proof on the Section 2 claims, they were properly dismissed without submission to the jury. McElhenney Co. v. Western Auto Supply Co., 269 F.2d 332, 339 (4 Cir. 1959); Mackey v. Sears Roebuck & Co., 237 F.2d 869, 873 (7 Cir. 1956), cert. dismissed, 355 U.S. 865 (1957). We also hold that the court correctly dismissed at the close of all of the evidence pendent fraud and deceit claims, since there was not a shred of evidence to establish the requisite elements of such a cause of action. Channel Master Corp. v. Aluminum Limited Sales, Inc., 4 N.Y.2d 403, 151 N.E.2d 833, 176 N.Y.S.2d 259 (1958). With respect to the conspiracy claims under Section 1 of the Sherman Act which were submitted to the jury, the only evidence offered by Mercu-Ray in support of such claims was the coincidence of the dates of defendants’ rejection of Kreager’s proposals. Such parallel business behavior, without more, does not establish an illegal agreement in violation of the Sherman Act. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 286-88 (1968); Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 541 (1954). The jury verdict in favor of defendants correctly reflected the absence of credible evidence of a conspiracy in restraint of trade in violation of Section 1 of the Sherman Act. III. In the second action (No. 73-2577), we hold that Judge Duffy correctly dismissed the complaint on the ground of res judicata, since the second action was barred by the judgment dismissing the first. In short, the court correctly concluded that Kreager, as the sole shareholder of Mercu-Ray, was bound by the dismissal of the first action brought in the name of his corporation. In Zdanok v. Glidden Company," } ]

[ { "docid": "1785375", "title": "", "text": "other distributor-termination case.” See id. at 760-61, 104 S.Ct. at 1469— 70. As to the first distinction, the Court wrote: [T]here is the basic distinction between concerted and independent action — a distinction not always clearly drawn by parties and courts. Section 1 of the Sherman Act requires that there be a “contract, combination ... or conspiracy” between the manufacturer and other distributors in order to establish a violation. 15 U.S.C. § 1. Independent action is not proscribed. A manufacturer of course generally has a right to deal, or refuse to deal, with whomever it likes, as long as it does so independently. United States v. Colgate & Co., 250 U.S. 300, 307 [39 S.Ct. 465, 468, 63 L.Ed. 992] (1919); cf. United States v. Parke, Davis & Co., 362 U.S. 29 [80 S.Ct. 503, 4 L.Ed.2d 505] (1960). Id. at 761, 104 S.Ct. at 1469. Monsanto thus reaffirmed the doctrine of United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919): The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish, to engage, in trade and commerce — in a word to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell. “The trader or manufacturer, on the other hand, carries on an entirely private business, and can sell to whom he pleases * * United States v. Trans-Missouri Freight Association, 166 U.S. 290, 320 [17 S.Ct. 540, 551, 41 L.Ed. 1007 (1897)]. See also Russell Stover Candies, Inc. v. FTC, 718 F.2d 256, 259-60 (8th Cir.1983) (following Colgate). Later in the Monsanto opinion the Court discussed the evidentiary" }, { "docid": "14979824", "title": "", "text": "and selling domestic beer in the United States has declined from 121 in 1964 to 58 in 1974. Moreover, while production has increased by 61% since 1950, the number of brewing plants has dwindled from 407 to 129, a 68% reduction. In 1974 the top three brewers made 64% of domestic beer sales, and the top five, including Miller, accounted for 77% of all domestic production. With this background in mind, we must determine whether the record before us presents a material question of fact as to the occurrence of an antitrust violation. A. Section 1 of the Sherman Act It is true, as the majority has indicated, that the Sherman Act “does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919). The “Colgate doctrine” however, has been “narrowly limited.” United States v. Parke, Davis & Co., 362 U.S. 29, 42, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). See United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024 (1944); FTC v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922); United States v. Schrader’s Son, 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471 (1920); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). See generally Areeda, Antitrust Analysis 11500-36 (2d ed. 1974). A seller may not “by contracts or combinations, express or implied, unduly hinder the free and natural flow of commerce in the channels of interstate trade” without violating the Sherman Act. Bausch & Lomb, 321 U.S. at 722, 64 S.Ct. at 813, quoting Beech-Nut, 257 U.S. at 453, 42 S.Ct. 150. A case instructive on this point is Interphoto Corp. v. Minolta Corp., 295 F.Supp. 711 (S.D.N.Y.), aff’d in part, 417 F.2d 621 (2d Cir. 1969). In that case, Interphoto was a distributor" }, { "docid": "12198826", "title": "", "text": "up by the defendant were for the express purpose of preventing the plaintiff from engaging in the business of an advertising agency and served to destroy competition by plaintiff and in fact rendered transaction of business by plaintiff impossible. A review of the provisions of the Sherman Act and the cases interpreting it leads us to the conclusion that the complaint states a cause of action under both Sections 1 and 2 of the Act. Section 2 of the Sherman Act dealing with monopolies provides: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor * * * ft The principal contention of the defendant is that a business has an unrestricted right to refuse to make a purchase, or in the context of this case, to purchase advertising from the plaintiff advertising agency. This theory is no doubt based on the early leading antitrust case of United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). In that case, a unanimous Supreme Court declared: “The purpose of the Sherman Act is * * * to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell.” 250 U.S. at 307, 39 S.Ct. at 468. While the right to refuse to purchase was here upheld, the Court did so only “[i]n the absence of any purpose to create or maintain a monopoly”. Even in Colgate there is no indication that business has an unrestricted right to deal with whomever it pleases. In more recent cases the Supreme Court has firmly established-the principle" }, { "docid": "5696290", "title": "", "text": "bear any legal significance. Nevertheless, the statements were relevant and admissible. Appellee’s argument only addresses the weight to be given to them, which is a task for the jury. B. SECTION 1 CLAIMS: AGREEMENT IN RESTRAINT OF TRADE Section 1 of the Sherman Act prohibits “[ejvery contract, combination ... or conspiracy, in restraint of trade.” 15 U.S.C. § 1 (1982). Appellant’s section 1 claims allege an illegal agreement between the exhibitors and the distributors in the form of a “group boycott” aimed at excluding The Movie from the Santa Cruz theatre market. The Supreme Court has emphasized, however, that the Sherman Act does not restrict “the long recognized right of a trader ... engaged in an entirely private business, freely to exercise his own independent discretion as to the parties with whom he will deal.” United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919). Because of a supplier’s right to choose his customers and set his own terms, “antitrust plaintiffs are required to do more than merely allege conspiracy and unequal treatment in order to take a case to trial.” Harkins Amusement Enterprises v. General Cinema Corp., 850 F.2d 477, 483 (9th Cir.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 817, 102 L.Ed.2d 806 (1989). According to the law of this circuit, once a defendant rebuts the allegations of conspiracy with “probative evidence supporting an alternative interpretation of a defendant’s conduct,” the plaintiff must come forward with specific factual support of its conspiracy allegations to avoid summary judgment. Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 680 (9th Cir.1985). The defendants in this case did offer some evidence from which a trier of fact could reasonably have found that their refusal to deal with The Movie was based on legitimate and sound business judgment. Following such a showing of a plausible and justifiable reason for a defendant’s conduct, a plaintiff must provide specific factual support for its allegations of conspiracy which tends to show that the defendant was not acting independently. Accordingly, we examine appellant’s evidence in support of its conspiracy" }, { "docid": "4448940", "title": "", "text": "determination itself. The district court, however, did not act as arbiter of credibility; it simply found that the relevant market could not include the acid form. Summary judgment is appropriate where expert testimony rests on an erroneous assumption of law or fact. Here, Bell’s expert erroneously assumed that market power in the production of acid form necessarily implies similar power in the market for products derived from the acid form. Without evidence demonstrating that consumers can use the acid form directly to control brush and weed, the acid form market cannot be considered part of the relevant market. By failing to provide any evidence of the market share Dow possesses in the technical and formulated phenoxies, Bell has failed to raise an issue of material fact on market power. We agree with the decision of the district court on this issue. 3. Exercise of Monopoly Power Bell also challenges the district court’s determination that no evidence was submitted showing that Dow’s actions were motivated by a monopolizing purpose. In making this determination, the district court relied upon the general rule that a monopolist does not have a duty to deal. In the absence of any purpose to create or maintain a monopoly, the [Sherman Act] does not restrict the long-recognized right of a trader or manufacturer engaged in an entirely private business freely to exercise his own independent discretion as to parties with whom he will deal. United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919). The first clause of the Colgate proposition qualifies the general rule: In the absence of any purpose to create or maintain a monopoly. In other words, the Colgate dicta allows refusals to deal to be used as evidence of a purpose to create or to maintain a monopoly. In a later commentary on the passage, the Supreme Court noted that the right to refuse to deal is not unqualified. Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951). The exercise of the right to refuse to deal “as" }, { "docid": "4448941", "title": "", "text": "relied upon the general rule that a monopolist does not have a duty to deal. In the absence of any purpose to create or maintain a monopoly, the [Sherman Act] does not restrict the long-recognized right of a trader or manufacturer engaged in an entirely private business freely to exercise his own independent discretion as to parties with whom he will deal. United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919). The first clause of the Colgate proposition qualifies the general rule: In the absence of any purpose to create or maintain a monopoly. In other words, the Colgate dicta allows refusals to deal to be used as evidence of a purpose to create or to maintain a monopoly. In a later commentary on the passage, the Supreme Court noted that the right to refuse to deal is not unqualified. Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951). The exercise of the right to refuse to deal “as a purposeful means of monopolizing interstate commerce is prohibited by the Sherman Act.” 342 U.S. at 155, 72 S.Ct. at 187. On several occasions our Circuit has found a refusal to deal to be evidence of an intent to preserve a monopoly or to distort competition. See Poster Exchange, Inc. v. Nat’l Screen Service Corp., 431 F.2d 334 (5th Cir.1970); Six Twenty-Nine Prods, Inc. v. Rollins Telecasting, Inc., 365 F.2d 478 (5th Cir.1966). Defendants can offer business justifications for the refusal to deal. If the justifications are supported by legitimate business concerns (such as cost savings, shortage of supplies, more efficient production), then the district court may decide as a matter of law that the defendant’s refusal “ ‘was actuated by innocent motives rather than by an intention and desire to perpetuate a monopoly.’ ” Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 375, 273 S.Ct. 684, 690, 71 L.Ed. 684, 690 (1927). In Poster Exchange, we found that a monopolist illegally intended to drive a competitor out of a market by," }, { "docid": "2596252", "title": "", "text": "-if there were here a finding that the restrictions were part of a scheme involving unlawful price fixing, the result would be a per se violation of the Sherman Act. United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238; United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024. 388 U.S. at 373, 87 S.Ct. at 1862. The restrictions Coors imposed necessarily facilitated price fixing. In United States v. Colgate & Co., 1919, 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992, 997, the Supreme Court held: In the absence of any purpose to create or maintain a monopoly, the [Sherman] act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell. As we understand its position, Coors does not even rely on the Colgate doctrine insofar as its own actions are concerned. Rather, Coors urges that it had nothing at all to do with what happened between its distributor and the plaintiff, and implies that this conduct was shielded by Colgate. The Colgate doctrine operates within a narrow ambit, and does not immunize conduct that goes beyond a simple refusal to deal. The leading case limiting the scope of Colgate is United States v. Parke, Davis & Co., 1960, 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505. In Parke, Davis the Court described the conduct that exceeded the limits of Colgate in the following terms: Parke Davis did not content itself with announcing its policy regarding retail prices and following this with a simple refusal to have business relations with any retailers who disregarded that policy. Instead Parke Davis used the refusal to deal with the wholesalers in order to elicit their willingness to deny Parke Davis products to retailers and thereby help gain the retailers’ adherence to its suggested minimum retail prices. The retailers" }, { "docid": "18649171", "title": "", "text": "that plaintiffs’ arguments reveal the fact that the real nub of plaintiffs’ complaint is not an antitrust claim at all. Rather, plaintiffs simply feel that defendants have made a mistake in adopting a standard which precludes dealing with two such reliable companies as plaintiffs. Unfortunately for plaintiffs’ position, bad business judgment does not constitute a Sherman Act violation. Natrona Service, Inc. v. Continental Oil Co., supra, 435 F.Supp. at 110. Plaintiffs’ remedy is not to being an antitrust action, but to present their case to FNMA’s board of directors. Plaintiffs stand in the shoes of any company which has lost an account. They need to send a salesman to attempt to get it back. Upon contemplation, the Court concludes that the record in . this case shows nothing more than unilateral refusals to deal which do not constitute Sherman Act violations. FNMA has chosen a Class VI requirement because it suits FNMA’s need for a uniform, objective standard. Anchor and Fidelity have chosen the same requirement in part because it makes their product more attractive to potential purchasers. Defendants have chosen to deal with larger insurance companies. They have not chosen to deal with plaintiffs unless plaintiffs utilize reinsurance. These are independent decisions which defendants can make with impunity under the antitrust laws. It was established long ago that a company has the right to choose with whom it will deal and on what terms. In United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919), the Supreme Court said: In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell. See also Fuchs Sugar & Syrups, Inc. v. Amster Corp., 602 F.2d 1025, 1030 (2d Cir. 1979); Lamb's Patio Theatre v. Universal Film Exchanges, 582 F.2d 1068, 1070 (7th" }, { "docid": "6114706", "title": "", "text": "antitrust laws, the Supreme Court has found that “[i]f accompanied by unlawful conduct or agreement, or conceived in monopolistic purpose or market control, even individual sellers’ refusals to deal have transgressed the Act.” Times-Picayune, 345 U.S. at 625, 73 S.Ct. at 889 (citations omitted). In United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), the Court emphasized that refusals to deal are acceptable only “[i]n the absence of any purpose to create or maintain a monopoly.” Colgate, 250 U.S. at 307, 39 S.Ct. at 468. See Lorain Journal Co. v. United States, 342 U.S. 143,155, 72 S.Ct. 181, 187, 96 L.Ed. 162 (1951) (the right claimed by the defendant to deal with whomever it pleases, if exercised as a purposeful means of attempting to monopolize interstate commerce, is prohibited by the Sherman Act). These cases plainly teach that a business, especially one with a large degree of market power, may violate § 2 of the Sherman Act if it exercises its power to deal with others, including its own distributor, in a manner which is designed to unreasonably restrain trade. See, e.g. Fount-Wip, Inc. v. Reddi-Wip, Inc., 568 F.2d 1296, 1300 (9th Cir.1978) (a “refusal to deal which is anticompetitive in purpose or effect, or both, constitutes an unreasonable restraint of trade in violation of the Sherman Act”); United States v. Klearflax Linen Looms, Inc., 63 F.Supp. 32, 38-39 (D.Minn.1945) (Nordbye, J.) (in enjoining manufacturer of linen rugs from refusing to deal with one of its own distributors where both had bid on government contract, court stated that while a refusal to deal may be lawful per se, it cannot be used with the design and purpose of wrongfully attempting to monopolize). Although Hartz, like any manufacturer, has wide latitude to dictate the terms under which it will do business, the jury could reasonably have found that Hartz’s acts towards GI were not legitimate business practices directed to accomplishing a lawful end but were specifically designed to destroy a perceived source of competition. That the source of this perceived competition was also a" }, { "docid": "12198827", "title": "", "text": "early leading antitrust case of United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). In that case, a unanimous Supreme Court declared: “The purpose of the Sherman Act is * * * to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell.” 250 U.S. at 307, 39 S.Ct. at 468. While the right to refuse to purchase was here upheld, the Court did so only “[i]n the absence of any purpose to create or maintain a monopoly”. Even in Colgate there is no indication that business has an unrestricted right to deal with whomever it pleases. In more recent cases the Supreme Court has firmly established-the principle that Section 2 of the Sherman Act prohibits an enterprise from refusing to deal with another business entity when this course of action is undertaken in furtherance of monopolization of the relevant market. A significant Supreme Court case in this area is Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951). In that case the only newspaper in Lorain, Ohio, responded to the opening of a new radio station in the community by refusing to accept advertising from local merchants who also advertised on the new radio station. The Supreme Court held that the defendant’s refusal to buy was an illegal attempt to monopolize the dissemination of news and advertising. Justice Burton declared for the Court: “Assuming the interstate character of the commerce involved, it seems clear that if all the newspapers in a city, in order to monopolize the dissemination of news and advertising by eliminating a competing radio station, conspired to accept no advertisements from anyone who advertised over that station, they would violate §§ 1" }, { "docid": "7547048", "title": "", "text": "United States v. Colgate & Company, 1919, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992. There the defendant manufacturer was charged with refusing to sell to wholesalers and retailers who would not resell at prescribed prices. The court was faced with the problem of construing the indictment. If the indictment alleged that the wholesalers and retailers were obligated to resell for the prescribed prices, the indictment was sufficient to charge a violation of Section 1 of the Sherman Act. Dr. Miles Medical Co. v. John D. Park & Sons Co., 1911, 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502. But the court construed the indictment to charge that the wholesalers and retailers were not so obligated, and were free to sell at their own prices. The court held that, under the circumstances, the refusal to supply was not a violation of the Sherman Act, stating at page 307 of 250 U.S., at page 468 of 39 S.Ct: “In the absence of any purpose to create or maintain a monopoly, the Act does not restrict the long recognized right of a trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” Language to the same effect was reiterated in Nelson Radio & Supply Co. v. Motorola, Inc., supra; and the foregoing quotation was cited with approval in Lorain Journal Co. v. United States, 1951, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162, although the court found that a monopoly did exist in violation of Section 2 of the Sherman Act. However, the above cases are distinguishable. In both Colgate and Nelson, the defendant refused to sell his own goods to the plaintiff. In the case at bar the defendants are alleged to have inhibited the plaintiffs from selling the \\plaintiffs’ own goods. Thus, this case does not involve the right of a manufacturer to choose his customers. Rather it approximates in result the boycott or blacklist which has been held to violate the Sherman and Clayton Acts. See Fashion Originators’ Guild of America v." }, { "docid": "12718848", "title": "", "text": "U.S. 145, 151, 88 S.Ct. 869, 872, 19 L.Ed.2d 998 (1968). The Supreme Court originally made this position clear in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911), when it proscribed written contracts between the manufacturer and dealers fixing retail prices. Id. at 407-08, 31 S.Ct. at 384-85. Eight years later, the Court, in United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), backtracked to some extent: In the absence of any purpose to create or maintain a monopoly, the [Sherman] [A]ct does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell. Id. at 307, 39 S.Ct. at 468. The Court noted that the indictment did not charge Colgate “with selling its products to dealers under agreements which obligated the latter not to resell except at prices fixed by the company,” id., whereas in Dr. Miles, “the unlawful combination was effected through contracts which undertook to prevent dealers from freely exercising the right to sell [their own goods],” United States v. Colgate & Co., supra, 250 U.S. at 307-08, 39 S.Ct. at 468. Since the advent of Colgate, both the Court and commentators have been grappling to recast or limit its reach. See Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv.L.Rev. 655, 684-85, 687-88 (1962) (discussing cases); Pitofsky, in Pitofsky & Dam, Is the Colgate Doctrine Dead, 37 ABA Antitrust L.J. 772 (1968) (yes it is); Maslow, Colgate Updated: Resale Price Maintenance and Antitrust Liability, 48 N.Y.St.B.J. 626 (1978) (Colgate not dead). The Dr. Miles “contract” element was enlarged to include agreements “implied from a course of dealing.” United States v. A. Schrader’s Son, Inc., 252 U.S. 85, 99, 40 S.Ct. 251, 64 L.Ed. 471 (1920). The Colgate refusal-to-deal notion was narrowly" }, { "docid": "23574409", "title": "", "text": "appellant that the injunction cannot be sustained. I. Section 1 of the Sherman Act provides that, “Every contract, combination * * * or conspiracy, in restraint of trade * * * is declared to be illegal.” 15 U.S.C.A. § 1. It is to be noted that this provision requires some type of joint action, as well as an (undue) restraint of trade. A. Contract, Combination or Conspiracy. In the often cited case of United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919), the Supreme Court held that the Sherman Act “does not restrict the long recognized right of [a] * * * manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” Colgate, it was believed, stood for the proposition that, in the absence of an unlawful agreement between a manufacturer and its customer, a refusal to deal with a mere unilateral act which could not violate Section 1 irrespective of the manufacturer’s motives. Although much water has gone over the dam since that decision, see Warner & Co. v. Black & Decker Mfg. Co., 277 F.2d 787, 789 (2nd Cir., 1960), and this interpretation of the Act has been substantially limited, see United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), the Colgate case has not been expressly overruled. Instead, it appears that: “The Supreme Court has left a narrow channel through which a manufacturer may pass even though the facts would have to be of such Doric simplicity as to be somewhat rare in this day of complex business enterprise.” Warner & Co. v. Black & Decker Mfg. Co., supra, at p. 790 of 277 F.2d. We believe that in the instant case the facts are of such “Doric simplicity.” Assuming as we do that the proof warranted the inference that Simplicity’s action was motivated by Materials’ prosecution of the treble damage action, appellant has done nothing except exercise its right to terminate the contract in accordance with its" }, { "docid": "20964748", "title": "", "text": "v. Colgate & Co., 1919, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, the Supreme Court held that without an allegation of unlawful agreement, there was no Sherman Act violation. The Court said at page 307 of 250 U.S., at page 468 of 39 S.Ct.: “The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce — in a word to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell.” Thus, under the Colgate doctrine a manufacturer, having announced a price maintenance policy, may bring about adherence to it by refusing to deal with customers who do not observe that policy. However, in Federal Trade Comm. v. Beech-Nut Packing Co., 1922, 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307, and United States v. Bausch & Lomb Optical Co., 1944, 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024, the court narrowly limited Colgate so as to subject to Sherman Act liability the producer who secures his customers’ adherence to his resale prices by methods which go beyond the simple refusal to sell customers who will not resell at stated prices. The recent ease of United States v. Parke, Davis & Co., 1960, 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 contains a thorough analysis of the cases in which the Supreme Court has considered the question of the type of acts necessary to constitute a combination in restraint of trade, and hence a violation of the Sherman Act. In the Parke case, the court stated at page 44 of 362 U.S., at page 511 of 80 S.Ct.: “* * *" }, { "docid": "12738381", "title": "", "text": "here has agreed with others upon a course of conduct which constitutes both an unlawful refusal to deal, or group boycott, and an unlawful territorial division of markets. As conduct of either type would be unreasonable as a matter of law, plaintiff contends that no question as to the reasonableness of the restraint of trade resulting from defendant’s conduct is presented and has offered no evidence to show that as a matter of fact defendant’s actions have caused the public injury which is a necessary element of Sherman Act violations in non-per se cases. As plaintiff presents its case, then, we would have to find not only that the jury below could reasonably have found an agreement between defendant and its dealers, but that the agreement was of the kind subject to absolute prohibition under section 1. Ford in its defense relies upon the doctrine of United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919) that: In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell. The evidence here, defendant contends, establishes no more than a unilateral declaration of future policy coupled with the acquiescence of some of its dealers, which, under Colgate, does not suffice to establish a “contract, combination or conspiracy” within the meaning of section 1. The Colgate doctrine that a manufacturer has the theoretical right to “announce in advance the circumstances under which he will refuse to sell,” and to stop dealing with a distributor for “reasons sufficient to himself,” has in practice offered little protection to manufacturers from the finding of tacit agreements to which section 1 could apply. Whatever protection may at first have been thought provided by Colgate has been progressively eroded in subsequent cases. In the latest, United States v." }, { "docid": "783066", "title": "", "text": "plaintiff must prove that the manufacturer had a program of resale price maintenance, that it sought the aid of plaintiff’s competitors in enforcing said program, and that its actions toward plaintiff were designed to secure compliance with the desired resale price. Sweeney has neither alleged nor proved any of these things. In United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), the Supreme Court made it clear that unilateral action by a manufacturer does not violate § 1 of the Sherman Act. This basic premise remains unchanged despite a series of Supreme Court decisions which defined and narrowed the limits of unilateral behavior. United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960); United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024 (1944); F.T.C. v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922); Frey & Son, Inc. v. Cudahy Packing Co., 256 U.S. 208, 41 S.Ct. 451, 65 L.Ed. 892 (1921); United States v. A. Schrader’s Son, Inc., 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471 (1920); Areeda, Antitrust Analysis, 559-560 (1974). The defendant in Colgate was a manufacturer who had published lists of the prices at which its products should be sold and had announced that it would refuse to sell to any dealers who failed to charge those prices. The Court refused to find that such conduct violated § 1 of the Sherman Act and held that, In the absence of any purpose to create or maintain a monopoly, [which would bring the case under § 2, not § 1] the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell. 250 U.S. at 307, 39 S.Ct. at 468. The Court thus distinguished Colgate’s practice from that which it had" }, { "docid": "7056759", "title": "", "text": "Inc. v. United States Steel Corp., 322 F.2d 656, 661-665 (9th Cir. 1963); Gold Fuel Service, Inc. v. Esso Standard Oil Co., 306 F.2d 61, 64 (3rd Cir. 1962); Delaware Valley Marine Sup. Co. v. American Tobacco Co., 297 F.2d 199, 202-206 (3rd Cir. 1961), cert. denied, 369 U.S. 839, 82 S.Ct. 867, 7 L.Ed.2d 843 (1962); North Penn Oil & Tire Co. v. Phillips Petroleum Co., 358 F.Supp. 908, 922-923 (E.D. Pa.1973); United Shoppers Exclusive v. Broadway-Hale Stores, Inc., 1966 CCH Trade Cas. ¶ 71,727 at 82,271 to 82,272 (N.D.Cal.1965), and United States v. Twentieth Century-Fox Film Corp., 137 F.Supp. 78, 85 (S.D.Cal.1956). In United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), the Supreme Court sought to harmonize the provisions of the Sherman Act invalidating all restraints- of trade with the right of a merchant unilaterally to engage in business with whom he desires. “In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell.” Id. at 307, 39 S.Ct. at 468. Conversely, group boycotts or concerted refusals to deal create a per se liability under the antitrust laws because the restraints intrinsically are so unduly restrictive and anti-competitive. See, e. g., Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 659-660, 81 S.Ct. 365, 367, 5 L.Ed.2d 358 (1961); Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 211-212, 79 S.Ct. 705, 709, 3 L.Ed.2d 741 (1959); Otto Milk Co. v. United Dairy Farmers Coop Ass’n., 388 F.2d 789, 797 (3rd Cir. 1967), and Jones Knitting Corp. v. Morgan, 361 F.2d 451, 459 (3rd Cir. 1966). The Supreme Court has observed however in White Motor Co. v. United States, 372 U.S. 253, 261-264, 83 S.Ct. 696, 701-702, 9 L.Ed.2d 738 (1963), that not every" }, { "docid": "5530717", "title": "", "text": "marketed, unless he manufactured the invention himself (which plaintiffs Board and Shapiro do not), it is doubtful that the inventor could allege that the “birth of a commerce” had been aborted. As the court in Raitport v. General Motors, No. 73-2054 at 5 (E.D.Pa.1975), aff’d, 547 F.2d 1163 (3rd. Cir. 1976), cert. denied, 431 U.S. 932, 97 S.Ct. 2639, 53 L.Ed.2d 248 (1977), said with respect to a similar claim to the effect that defendant car manufacturers were restraining new companies from entering the automotive components market, neither plaintiff nor any other automotive component “inventor-entrepreneur” has a federally guaranteed right to have his business proposals accepted and financed by private automotive companies. Moreover, the Supreme Court has long recognized the right of private companies, in the absence of any purpose to create or maintain a monopoly, to freely choose the parties with whom they will deal. United States v. Colgate & Company, 250 U.S. 300, 307, 39 S.Ct. 465, 63 L.Ed. 992 (1919). In Gamco, Inc. v. Providence Fruit and Produce Building, 194 F.2d 484 (1st Cir. 1952), the court noted that “[t]he [Sherman] Act does not merely guarantee the right to create markets; it also insures the right of entry to old ones.” 194 F.2d at 487. Articulating the appropriate standard for assessing market exclusion, Judge Clark observed that “[t]he conjunction of power and motive to exclude with an exclusion not immediately and patently justified by reasonable business requirements establishes a prima facie case of the purpose to monopolize.” 194 F.2d at 488. Yet in Gamco, the exclusion affected defendant’s competitors directly, whereas to speak of the automakers and plaintiffs as direct competitors is to engage in an exaggeration. On the other hand, plaintiffs and defendants may “compete” to the extent that defendants maintain in-house inventors. In the area of creative innovation, however, the traditional concepts of competition and market behavior seem misplaced. Although Ford and General Motors maintain their own in-house inventors, it seems unlikely that the automakers would rely on their own staffs entirely. New ideas in the automotive field can emerge from noncompany private “Edisons” as" }, { "docid": "20964747", "title": "", "text": "contract, or a combination in the form of trust or otherwise, or conspiracy, in restraint of trade. 2. There is no showing that defendants’ acts have injured the public. 3. Since defendant Ames’ merchandise is trademarked, defendant’s requiring plaintiffs to sell this merchandise at suggested retail prices does not violate the California Fair Trade Act, and hence is not illegal under § 1 of Title 15 U.S.C.A. These points raised by defendants will be considered together with an additional ground, viz., the effect of defendants’ acts upon interstate commerce. Necessity of alleging contract, combination or conspiracy. The Sherman Act, 15 U.S.C.A. § 1, declares illegal, “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, * * * ” Therefore, a contract, combination or conspiracy is an essential element of a violation of the Sherman Anti-Trust Act, § 1 as amended, 15 U.S.C.A. § 1. Weir v. Chicago Plastering Institute, 7 Cir., 1959, 272 F.2d 883. In United States v. Colgate & Co., 1919, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, the Supreme Court held that without an allegation of unlawful agreement, there was no Sherman Act violation. The Court said at page 307 of 250 U.S., at page 468 of 39 S.Ct.: “The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce — in a word to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell.” Thus, under the Colgate doctrine a manufacturer, having announced a price maintenance policy, may bring about adherence" }, { "docid": "15764262", "title": "", "text": "Cir. 1972), cert. denied, 409 U.S. 1109, 93 5. Ct. 912, 34 L.Ed.2d 690 (1973). Accordingly, a seller has a unilateral right to select its customers and to refuse to sell its goods to anyone, for reasons sufficient to itself. The seminal decision in this area is United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). The case came to the Supreme Court on a writ of error from a District Court judgment dismissing an indictment under the Sherman Act. The indictment was based solely on the theory that Colgate & Co. had combined with its wholesale and retail dealers to effect resale price maintenance and had procured adherence through refusals to deal. The District Court interpreted the indictment not to allege any agreement to maintain resale prices between Colgate & Co. and its customers. The Supreme Court held itself bound by this interpretation of the indictment. Affirming the District Court, the Supreme Court held: The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce — in a word to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell. Id. at 307, 39 S.Ct. at 468. This is the now-famous Colgate doctrine. Although formally grounded on the broad premise that a seller who makes no promise is contractually free to alienate its own goods, the Colgate doctrine has evolved into a much narrower concept. Despite critical Supreme Court narrowing and commenta tor criticism, the Colgate doctrine remains viable in antitrust law. Its continued viability has been recognized in recent decisions by all our sibling Circuits" } ]

[ { "docid": "22363727", "title": "", "text": "not, with the advice of counsel, assent to its withdrawal from the jury. And where, as here, the indictment charges two sets of false statements, each independently sufficient to sustain the conviction, I cannot accept respondents’ contention that the withdrawal of one set and the submission of the other to the jury amounted to an amendment of the indictment. An indictment is amended when it is so altered as to charge a different offense from that found by the grand jury. Ex parte Bain, 121 U. S. 1. But here there was no alteration of the indictment, Salinger v. United States, 272 U. S. 542, 549, nor did the court’s action, in effect, add anything to it by submitting to the jury matters which it did not charge. United States v. Norris, 281 U. S. 619, 622. In Salinger v. United States, supra, 548-9, we explicitly held that where an indictment charges several offenses, or the commission of one offense in several ways, the withdrawal from the jury’s consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of the indictment. See also Goto v. Lane, 265 U. S. 393, 402-3; Ford v. United States, 273 U. S. 593, 602. Were the rule otherwise the common practice of withdrawing from the jury’s consideration one count of an indictment while submitting others for its verdict, sustained in Dealy v. United States, 152 U. S. 539, 542, would be a fatal error. We may assume that under some circumstances the submission to the jury of part only of the matters alleged in the indictment might result in such surprise to the defendant as to amount to the denial of a fair trial. But, as in the analogous case of a variance between pleading and proof, a conviction can be reversed only upon a showing of injury to the “substantial rights” of the accused. Berger v. United States, 295 U. S. 78, 82. Here no claim of surprise has been or could be made. The indictment plainly charged both falsity of, and lack of good faith" } ]

[ { "docid": "22716279", "title": "", "text": ".” 121 U. S. 1, 13. The Bain case, which has never been disapproved, stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him. See also United States v. Norris, 281 U. S. 619, 622. Cf. Clyatt v. United States, 197 U. S. 207, 219, 220. Yet the court did permit that in this case. The indictment here cannot fairly be read as charging interference with movements of steel from Pennsylvania to other States nor does the Court of Appeals appear to have so-read it. The grand jury which found this indictment was satisfied to charge that Stirone’s conduct interfered with interstate importation of sand. But neither,this nor any other court can know that the grand jury would have been willing to charge that Stirone’s conduct would interfere with interstate exportation of steel from a mill later to be built with Rider’s concrete. And it cannot be said with certainty that with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned. Although the trial court did not'permit a formal amendment of the indictment, the.effect' of what it did was the same. And the addition charging interference with steel exports here is neither trivial, useless, nor innocuous. Compare Ford v. United States, 273 U. S. 593, 602; Goto v. Lane, 265 U. S. 393, 402. While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error. Compare Berger v. United States, 295 U. S. 78. The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of. either prosecuting attorney or judge." }, { "docid": "22761988", "title": "", "text": "Miller clear notice that he would have to defend against an allegation that he “‘well knew that the amount of copper claimed to have been taken during the alleged burglary was grossly inflated for the purpose of fraudulently obtaining $150,000 from Aetna Insurance Company.’” 715 F. 2d, at 1361-1362 (quoting indictment). Competent defense counsel certainly should have been on notice that that offense was charged and would need to be defended against. Accordingly, there can be no showing here that Miller was prejudicially surprised at trial by the absence of proof concerning his alleged complicity in the burglary; nor can there be a showing that the variance prejudiced the fairness of respondent’s trial in any other way. Cf. Kotteakos v. United States, 328 U. S. 750 (1946). See also Berger v. United States, 295 U. S. 78, 83 (1935). Cf. also United States v. Ballard, 322 U. S. 78, 91 (1944) (Stone, C. J., dissenting). The indictment was also sufficient to allow Miller to plead it in the future as a bar to subsequent prosecutions. Therefore, none of these “notice” related concerns— which of course are among the important concerns underlying the requirement that criminal charges be set out in an indictment — would support the result of the Court of Appeals. See Russell v. United States, 369 U. S. 749, 763-764 (1962). The Court of Appeals did not disagree, but instead argued that Miller had been prejudiced in his right to be free from a trial for any offense other than that alleged in the grand jury’s indictment. 728 F. 2d, at 1270. It reasoned that a grand jury’s willingness to indict an individual for participation in a broad criminal plan does not establish that the same grand jury would have indicted the individual for participating in a substantially narrower, even if wholly included, criminal plan. 715 F. 2d, at 1362-1363. Relying on the Fifth Amendment’s grand jury guarantee, the Court of Appeals concluded that a conviction could not stand where the trial proof corresponded to a fraudulent scheme much narrower than, though included within, the scheme that the" }, { "docid": "18730863", "title": "", "text": "preserve the shielding function of the grand jury. If, on the other hand, the variance does not alter the elements of the offense charged, we will focus upon whether or not there has been prejudice to the defendant____ Somers, 496 F.2d at 744 (citations omitted). The Supreme Court recently confirmed such an analysis in United States v. Miller, - U.S. -, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985). In Miller, the grand jury charged Miller with defrauding his insurer by consenting to a burglary of his salvage company and subsequently claiming the losses from the burglary in excess of the value of the stolen property, both acts in violation of 18 U.S.C. § 1341 (1982). At trial, however, the government only presented proof related to the latter allegation. Although the government moved to strike the part of the indictment alleging prior knowledge of the burglary, Miller’s counsel objected to the change, and the court sent the entire charge to the jury. The jury found Miller guilty, and Miller appealed, asserting that the variance between the indictment and the proof at trial violated the fifth amendment’s grand jury guarantee. The Court began its analysis by noting that the evidence at trial “was clearly sufficient” to support Miller’s conviction. Id. at 1813. The Court next focused on whether the indictment properly gave notice of the crime for which Miller was convicted, and was sufficient to allow Miller to plead his conviction as a bar to subsequent prosecutions. The Court concluded that both notice and double jeopardy concerns were met. The indictment properly alleged violations of 18 U.S.C. § 1341 and fully and clearly set out the theories by which the acts alleged constituted violations. Miller, 105 S.Ct. at 1814. The evidence presented at trial clearly conformed to one of those theories, such that “[competent defense counsel certainly should have been been on notice that the offense was charged and would need to be defended against” and therefore, that “there can be no showing here that Miller was prejudicially surprised at trial by the absence of proof concerning his alleged complicity in the" }, { "docid": "22340795", "title": "", "text": "than the October 21 hear ing as the ancillary proceeding, the Court of Appeals construed this discrepancy as a nonprejudicial variance between the indictment and proof at trial. Id., at 123-124. The court also upheld the use of petitioner’s immunized grand jury testimony to prove a § 1623 violation. In so ruling, the court stated that immunized testimony generally may not be used to establish an inconsistent declaration without a prior independent showing that the testimony is false. But, in the court’s view, petitioner’s unequivocal concession at the October hearing that he had testified falsely before the grand jury justified the Government’s reliance on that testimony. 577 F. 2d, at 125-126. We granted certiorari, 439 U. S. 1045 (1978). Because we disagree with the Court of Appeals’ ultimate disposition of the ancillary-proceeding issue, we reverse without reaching the question whether petitioner’s immunized testimony was admissible to prove a violation of § 1623. II A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment. Berger v. United States, 295 U. S. 78 (1935). In the instant case, since the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the Court of Appeals identified a variance between the pleadings and the Government’s proof at trial. However, reasoning that petitioner’s October 21 testimony was “inextricably related” to his September 30 declaration, the court concluded that petitioner could have anticipated that the prosecution would introduce the October testimony. 577 F. 2d, at 123. The court therefore determined that the variance was not fatal to the Government’s case. See Kotteakos v. United States, 328 U. S. 750, 757 (1946). In our view, it is unnecessary to inquire, as did the Court of Appeals, whether petitioner was prejudiced by a variance between what was alleged in the indictment and what was proved at trial. For we discern no such variance. The indictment charged inconsistency between petitioner’s statements in the September 30 interview and his grand jury testimony. That was also the theory on which the case was tried and submitted to" }, { "docid": "18730864", "title": "", "text": "indictment and the proof at trial violated the fifth amendment’s grand jury guarantee. The Court began its analysis by noting that the evidence at trial “was clearly sufficient” to support Miller’s conviction. Id. at 1813. The Court next focused on whether the indictment properly gave notice of the crime for which Miller was convicted, and was sufficient to allow Miller to plead his conviction as a bar to subsequent prosecutions. The Court concluded that both notice and double jeopardy concerns were met. The indictment properly alleged violations of 18 U.S.C. § 1341 and fully and clearly set out the theories by which the acts alleged constituted violations. Miller, 105 S.Ct. at 1814. The evidence presented at trial clearly conformed to one of those theories, such that “[competent defense counsel certainly should have been been on notice that the offense was charged and would need to be defended against” and therefore, that “there can be no showing here that Miller was prejudicially surprised at trial by the absence of proof concerning his alleged complicity in the burglary.” Id. Moreover, “[t]he indictment was also sufficient to allow Miller to plead it in the future as a bar to subsequent prosecutions.” Id. The Court then distinguished those cases where it sustained the convictions from those in which the variance constituted reversible error. “Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment.” Miller, 105 S.Ct. at 1815. Thus, those offenses “unnecessary to and independent from allegations of the offense proved may normally be treated as ‘a useless averment’ that ‘may be ignored.’ ” Id., quoting Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 534, 71 L.Ed.2d 793 (1927). On the other hand, the Court read Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), as stating the rule that where “trial evidence had ‘amended’ the indictment by broadening the possible bases for conviction from that which appeared in the indictment,” Miller, 105 S.Ct. at 1816 (emphasis in original)," }, { "docid": "1937330", "title": "", "text": "that they may adequately prepare a defense. This issue is controlled by United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985). In Miller the defendant was charged with three counts of mail fraud in connection with a burglary of his business premises. Before trial, the government moved to strike the count that alleged prior knowledge of the burglary. The defendant was tried and convicted of fraudulently inflating the value of his property loss to his insurer. On appeal, the defendant argued that the fatal variance between the indictment returned by the grand jury and the scheme proved at trial violated his Fifth Amendment grand jury guarantee. The United States Court of Appeals for the Ninth Circuit agreed and vacated his conviction. The Supreme Court reversed. The Court first found that the indictment gave the defendant “clear notice” that he would have to defend against the offenses charged in it. Therefore, he could not be prejudiced by the absence of evidence at trial of his alleged planning in the burglary. The Court also found the indictment sufficient to allow the defendant to plead it as a bar against future double jeopardy problems. Finding that these “notice related concerns” were met, the Court stated: As long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime. Indeed, a number of longstanding doctrines of criminal procedure are premised on the notion that each offense whose elements are fully set out in an indictment can independently sustain a conviction.... Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment. A part of the indictment unnecessary to and independent from the allegations of the offense proved may normally be treated as “a useless averment” that “may be ignored.” Miller, 471 U.S. at 136, 105" }, { "docid": "22761989", "title": "", "text": "Therefore, none of these “notice” related concerns— which of course are among the important concerns underlying the requirement that criminal charges be set out in an indictment — would support the result of the Court of Appeals. See Russell v. United States, 369 U. S. 749, 763-764 (1962). The Court of Appeals did not disagree, but instead argued that Miller had been prejudiced in his right to be free from a trial for any offense other than that alleged in the grand jury’s indictment. 728 F. 2d, at 1270. It reasoned that a grand jury’s willingness to indict an individual for participation in a broad criminal plan does not establish that the same grand jury would have indicted the individual for participating in a substantially narrower, even if wholly included, criminal plan. 715 F. 2d, at 1362-1363. Relying on the Fifth Amendment’s grand jury guarantee, the Court of Appeals concluded that a conviction could not stand where the trial proof corresponded to a fraudulent scheme much narrower than, though included within, the scheme that the grand jury had alleged. The Court of Appeals cited two prior decisions of this Court that emphasized the right of an accused to be tried only on charges that had in fact been passed on by a grand jury; Ibid, (citing Stirone v. United States, 361 U. S. 212 (1960), and Ex parte Bain, 121 U. S. 1 (1887)). Cf. United States v. Mastelotto, 717 F. 2d 1238, 1248-1250 (CA91983) (similarly relying on Stirone and Bain). II The Government correctly argues that the Court of Appeals’ result conflicts with a number of this Court’s prior decisions interpreting the Fifth Amendment’s Grand Jury Clause.. The Court has long recognized that an indictment may charge numerous offenses or the commission of any one offense in several ways. As long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same" }, { "docid": "12828689", "title": "", "text": "must (1) be informed of the charges against him so that he may present his defense and not be surprised by the evidence offered at trial; and (2) be protected against another prosecution for the same offense. See Berger, 295 U.S. at 82, 55 S.Ct. at 630; Stoner, 98 F.3d at 536. A variance “is not fatal unless the defendant could not have anticipated from the indictment what evidence would be presented at trial or unless the conviction based on an indictment would not bar a subsequent prosecution.” 3 Charles Alan Wright, Federal Practice and Procedure § 516, at 27 (2d ed.1982); see Stoner, 98 F.3d at 536-37. We also have adopted the Supreme Court’s holding that there is no fatal variance where a defendant “is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment.” Mobile, 881 F.2d at 874 (citing United States v. Miller, 471 U.S. 130, 135-40, 105 S.Ct. 1811, 1814-17, 85 L.Ed.2d 99 (1985)). There has been no showing that the variance prejudiced the fairness of Defendant’s trial in any way. Although the second superseding indictment charged a broad conspiracy among seven individuals to possess and distribute cocaine base or crack cocaine between March 1993 and March 1994 in Count 1, it also alleged many specific offenses which made up that widespread conspiracy. The jury in this casé found Defendant guilty of six underlying substantive offenses. The jury believed that Defendant conspired to commit three of those offenses,, charged in Counts 26, 27, and 28, with Mr. Douglas on November 19, 1993. The evidence proving these charges, while narrower than the conspiracy alleged in Count 1, did not extend-or broaden the indictment in any way. See Miller, 471 U.S. at 140-45, 105 S.Ct. at 1814-17. The government did not offer proof of new facts or new offenses not alleged in the indictment. See id. at 138, 105 S.Ct. at 1816. Defendant, therefore, was not prejudicially surprised at trial by evidence proving that Defendant conspired to commit the offenses on" }, { "docid": "22761994", "title": "", "text": "related to all other plans. Salinger argued then, just as Miller argues now, that the variance between the broad allegations in the indictment and the narrower proof at trial violated his right to have had a grand jury screen any alleged offenses upon which he might be convicted at trial. This Court unanimously rejected Salinger’s argument on the ground that the offense proved was fully contained within the indictment. Nothing had been added to the indictment which, in the Court’s view, “remained just as it was returned by the grand jury.” Ibid. “[T]he trial was on the charge preferred in it and not on a modified charge,” ibid., and there was thus “not even remotely an infraction of the constitutional provision that ‘no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.’” Id., at 549. See also Berger v. United States, 295 U. S. 78 (1935); Goto v. Lane, 265 U. S. 393 (1924); Hall v. United States, supra, at 638-640. The result reached by the Court of Appeals thus conflicts with the results reached by this Court in such cases as Salinger and Ford. See also Hall v. United States, supra, at 638-640; Crain v. United States, supra, at 634-636. I — I HH HH The Court of Appeals principally relied on this Court s decision in Stirone v. United States, 361 U. S. 212 (1960), to support its conclusion that the Fifth Amendment’s grand jury right is violated by a conviction for a criminal plan narrower than, but fully included within, the plan set forth in the indictment. Stirone, however, stands for a very different proposition. In Stirone the offense proved at trial was not fully contained in the indictment, for trial evidence had “amended” the indictment by broadening the possible bases for conviction from that which appeared in the indictment. Stirone was thus wholly unlike the cases discussed in Part II, supra, and unlike respondent’s case, all of which involve trial evidence that narrowed the indictment’s charges without adding any new offenses. As" }, { "docid": "22761985", "title": "", "text": "Justice Marshall delivered the opinion of the Court. The issue presented is whether the Fifth Amendment’s grand jury guarantee is violated when a defendant is tried under an indictment that alleges a certain fraudulent scheme but is convicted based on trial proof that supports only a significantly narrower and more limited, though included, fraudulent scheme. A grand jury in the Northern District of California returned an indictment charging respondent Miller with three counts of mail fraud in violation of 18 U. S. C. § 1341. After the Government moved to dismiss the third count, Miller was tried before a jury and convicted of the remaining two. He appealed asserting that there had been a fatal variance between the “scheme and artifice” to defraud charged in the indictment and that which the Government proved at trial. The Court of Appeals for the Ninth Circuit agreed and vacated the judgment of conviction. 715 F. 2d 1360 (1983), modified, 728 F. 2d 1269 (1984). We granted certiorari, 469 U. S. 814 (1984), and reverse. I A The indictment had charged Miller with various fraudulent acts in connection with a burglary at his place of business. Miller allegedly had defrauded his insurer both by consenting to the burglary in advance and by lying to the insurer about the value of his loss. The trial proof, however, concerned only the latter allegation, focusing on whether, prior to the burglary, Miller actually had possessed all the property that he later claimed was taken. This proof was clearly sufficient to support a jury finding that Miller’s claim to his insurer had grossly inflated the value of any actual loss. The Government moved to strike the part of the indictment that alleged prior knowledge of the burglary, and it correctly argued that even without that allegation the indictment still made out a violation of §1341. Respondent’s counsel opposed the change, and at his urging the entire indictment was sent to the jury. The jury found Miller guilty, and respondent appealed on the basis that the trial proof had fatally varied from the scheme alleged in the indictment. Agreeing" }, { "docid": "8907267", "title": "", "text": "a value of less than $100.00 were the two bundles referred to in the indictment. No motion to quash the indictment was made at any time by the appellant, thus the question was not properly preserved for appeal. Fed.R.Crim.P. 12 (b) (2); Russell v. United States, 369 U.S. 749, 753, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Even were the issue properly preserved for appeal, we would find against the appellant. The use in the indictment of the words “2 bundles, more or less,” was descriptive, and the essential element of the indictment insofar as value was concerned was the statement that the tubing alleged to have been stolen had a value in excess of $100.00. In Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Supreme Court said: “The true inquiry, therefore, is not whether there has been a variance of proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against himy so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense. * * * ” See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); Brilliant v. United States, 297 F.2d 385 (8th Cir. 1962), cert. denied 369 U.S. 871, 82 S.Ct. 1140, 8 L.Ed.2d 275 (1962). The indictment here clearly informed the defendant of the time and place of the alleged theft and that he was charged with having taken copper tubing having a value in excess of $100.00 from an interstate shipment. Thus, he was able to properly prepare a defense and should not have been surprised by any of the evidence offered by the prosecution. Affirmed. . There was no objection raised to the introduction of these documents and, absent plain" }, { "docid": "8210908", "title": "", "text": "district court’s instructions did not create a prejudicial variance prejudicing Daraio’s substantial rights. Initially on the variance point we recognize that “[t]he line between a constructive amendment and a variance is at times difficult to draw.” United States v. Adamson, 291 F.3d 606, 615 (9th Cir.2002). There is a variance “where the charging terms [of the indictment] are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.” Castro, 776 F.2d at 1121. When there has not been a constructive amendment of the indictment but rather there only has been a variance between the facts alleged in the indictment and the evidence offered at trial, the proceedings at the trial will not have usurped the constitutionally guaranteed role of the grand jury. Instead, the concerns raised by a variance argument are the fairness of the trial and the protection of the defendant’s right to notice of the charges against her and her opportunity to be heard. See, e.g., Kotteakos v. United States, 328 U.S. 750, 757-58, 66 S.Ct. 1239, 1244, 90 L.Ed. 1557 (1946); Berger v. United States, 295 U.S. 78, 81-82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). Accordingly, we have recognized that “[t]he variance rule, to the extent that it is constitutionally required, is more of a due process rule than is the flat fifth amendment prohibition against being tried on an indictment which a grand jury never returned.” United States v. Crocker, 568 F.2d 1049, 1059 (3d Cir.1977). Unlike a constructive amendment, a variance can result in a reversible error only if it is likely to have surprised or otherwise has prejudiced the defense. United States v. Schurr, 775 F.2d 549, 553-54 (3d Cir.1985). To demonstrate prejudice from a variance, a defendant “must show (1) that there was a variance between the indictment and the proof adduced at trial and (2) that the variance prejudiced some substantial right.” United States v. Balter, 91 F.3d 427, 441 (3d Cir.1996). “A variance does not prejudice a defendant’s substantial rights (1) if the indictment sufficiently informs the defendant of the charges against him" }, { "docid": "22761986", "title": "", "text": "had charged Miller with various fraudulent acts in connection with a burglary at his place of business. Miller allegedly had defrauded his insurer both by consenting to the burglary in advance and by lying to the insurer about the value of his loss. The trial proof, however, concerned only the latter allegation, focusing on whether, prior to the burglary, Miller actually had possessed all the property that he later claimed was taken. This proof was clearly sufficient to support a jury finding that Miller’s claim to his insurer had grossly inflated the value of any actual loss. The Government moved to strike the part of the indictment that alleged prior knowledge of the burglary, and it correctly argued that even without that allegation the indictment still made out a violation of §1341. Respondent’s counsel opposed the change, and at his urging the entire indictment was sent to the jury. The jury found Miller guilty, and respondent appealed on the basis that the trial proof had fatally varied from the scheme alleged in the indictment. Agreeing that Miller’s Fifth Amendment right to be tried only on a grand jury indictment had been violated, the Court of Appeals vacated the conviction. It succinctly stated its rationale: “The grand jury may well have declined to indict Miller simply on the basis of his exaggeration of the amount of his claimed loss. ... In fact it is quite possible that the grand jury would have been unwilling or unable to return an indictment based solely on Miller’s exaggeration of the amount of his claimed loss even though it had concluded that an indictment could be returned based on the overall scheme involving a use of the mail caused by Miller’s knowing consent to the burglary.” 715 F. 2d, at 1362-1363. B Miller’s indictment properly alleged violations of 18 U. S. C. § 1341, and it fully and clearly set forth a number of ways in which the acts alleged constituted violations. The facts proved at trial clearly conformed to one of the theories of the offense contained within that indictment, for the indictment gave" }, { "docid": "22762012", "title": "", "text": "thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” As is discussed supra, at 134-135, Miller has shown no prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment’s sufficiency to bar subsequent prosecutions, and the Court of Appeals did not rest on any such theories of prejudice. Cf. Kotteakos v. United States, 328 U. S. 750 (1946) (finding prejudice in a case of extreme variance between a charge of a very broad conspiracy and proof of far narrower but technically included conspiracies). See also Berger v. United States, 295 U. S., at 83. This analysis is apparent in Sam’s discussion of the issue: “The learned judge who presided ... at the time the change was made in this indictment. . . rests the validity of the court’s action in permitting the change in the indictment, upon the ground that the words stricken out were surplusage, and were not at all material to it, and that no injury was done to the prisoner by allowing such change to be made. He goes on to argue that the grand jury would have found the indictment without this language. But it is not for the court to say whether they would or not. The party can only be tried upon the indictment as found by such grand jury, and especially upon all its language found in the charging part of that instrument. While it may seem to the court, with its better instructed mind in regard to what the statute requires to be found as to the intent to deceive, that it was neither necessary nor reasonable that the grand jury should attach importance to the fact that it was the Comptroller who was to be deceived, yet it is not impossible nor very improbable that the grand jury looked mainly to that officer as the party whom the prisoner intended to deceive by a report which was made upon his requisition and returned directly to him. . . . How can the court" }, { "docid": "1937329", "title": "", "text": "be found to have agreed to participate in it.” United States v. Riccobene, 709 F.2d 214, 225 (3d Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983); see also United States v. Jannotti, 729 F.2d 213, 226 (3d Cir.1984) (government must show person enabled to commit predicate offenses solely by virtue of his involvement in enterprise, or that predicate offenses are related to enterprise’s activities), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984); United States v. Forsythe, 560 F.2d 1127, 1136 (3d Cir.1977) (RICO violations dependent upon behavior, not status in enterprise). We find, therefore, that the remaining allegations in Count One of the indictment sufficiently allege an 18 U.S.C.A. § 1962(d) violation. V. THE REDACTION OF THE INDICTMENT Appellants next argue that the massive redaction of the third superceding indictment from ninety counts to six violates their Fifth Amendment right to be tried on an indictment returned by a grand jury and their Sixth Amendment right to be informed of the nature of the crime so that they may adequately prepare a defense. This issue is controlled by United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985). In Miller the defendant was charged with three counts of mail fraud in connection with a burglary of his business premises. Before trial, the government moved to strike the count that alleged prior knowledge of the burglary. The defendant was tried and convicted of fraudulently inflating the value of his property loss to his insurer. On appeal, the defendant argued that the fatal variance between the indictment returned by the grand jury and the scheme proved at trial violated his Fifth Amendment grand jury guarantee. The United States Court of Appeals for the Ninth Circuit agreed and vacated his conviction. The Supreme Court reversed. The Court first found that the indictment gave the defendant “clear notice” that he would have to defend against the offenses charged in it. Therefore, he could not be prejudiced by the absence of evidence at trial of his alleged planning in the burglary. The" }, { "docid": "357704", "title": "", "text": "of fact could find the four ventures constituted a single scheme. Accordingly, we find no variance between the indictment and the proof at trial. Assuming that a variance had occurred, however, appellants have failed to show that their substantial rights were prejudiced. See United States v. Kenny, 645 F.2d 1323, 1334 (9th Cir.) (reversal for variance required only if prejudicial to substantial rights of parties), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981). Such prejudice may result in three ways: 1) inadequate opportunity to prepare a defense and exposure to unanticipated evidence at trial, Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629, 631, 79 L.Ed. 1314 (1935); 2) deprivation of the right to be tried only on charges presented in an indictment returned by a grand jury, Stirone v. United States, 361 U.S. 212, 218— 19, 80 S.Ct. 270, 273-74, 4 L.Ed.2d 252 (1960); and 3) exposure to prejudicial evidentiary spillover, Kotteakos v. United States, 328 U.S. 750, 774, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). The appellants had ample opportunity to prepare their defense and had adequate notice of the intended proof. The proof at trial did not broaden or go beyond the allegations in the indictment, so no deprivation of appellants’ grand jury right occurred. Finally the risk of evidentiary spillover is slight. Appellants’ involvements in the four investment projects were clearly detailed in the indictment. The situation is thus inapposite to Kotteakos where evidentiary spillover resulted from jury trial of thirteen defendants for involvement in more than eight conspiracies. Kotteakos, 328 U.S. at 753, 773, 66 S.Ct. at 1242, 1252. C. Investments as Securities Appellant Richmond contends that the government failed to establish that any of the investments offered by appellants were securities under 15 U.S.C. § 77b and that therefore none of the securities-related convictions can stand. In a criminal prosecution, the question whether a given investment opportuni ty constitutes a security is ordinarily a question for the jury, following instructions by the court on the applicable law. United States v. Carman, 577 F.2d 556, 562-63 (9th Cir.1978)." }, { "docid": "8210909", "title": "", "text": "1244, 90 L.Ed. 1557 (1946); Berger v. United States, 295 U.S. 78, 81-82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). Accordingly, we have recognized that “[t]he variance rule, to the extent that it is constitutionally required, is more of a due process rule than is the flat fifth amendment prohibition against being tried on an indictment which a grand jury never returned.” United States v. Crocker, 568 F.2d 1049, 1059 (3d Cir.1977). Unlike a constructive amendment, a variance can result in a reversible error only if it is likely to have surprised or otherwise has prejudiced the defense. United States v. Schurr, 775 F.2d 549, 553-54 (3d Cir.1985). To demonstrate prejudice from a variance, a defendant “must show (1) that there was a variance between the indictment and the proof adduced at trial and (2) that the variance prejudiced some substantial right.” United States v. Balter, 91 F.3d 427, 441 (3d Cir.1996). “A variance does not prejudice a defendant’s substantial rights (1) if the indictment sufficiently informs the defendant of the charges against him so that he may prepare his defense and not be misled or surprised at trial, [or] (2) if the variance is not such that it will present a danger that the defendant may be prosecuted a second time for the same offense.” United States v. Schoenhut, 576 F.2d 1010, 1021— 22 (3d Cir.1978). In this case there was not a prejudicial variance between the government’s proofs and the terms of the indictment. First, the indictment sufficiently informed Daraio of the charges against her so as to put her on notice to prepare her defense. Indeed, the government’s proofs concerning her failure to pay over to the government the full amount of the payroll taxes owed to the United States did not vary from the terms of the indictment. Certainly the evidence of which Daraio complains, ie., that she failed to withhold payroll taxes, is consistent with the allegation in the indictment that “[f]rom in or about April 1994 through in or about April 1998, defendant ... failed to pay over the full amount of payroll" }, { "docid": "22761987", "title": "", "text": "that Miller’s Fifth Amendment right to be tried only on a grand jury indictment had been violated, the Court of Appeals vacated the conviction. It succinctly stated its rationale: “The grand jury may well have declined to indict Miller simply on the basis of his exaggeration of the amount of his claimed loss. ... In fact it is quite possible that the grand jury would have been unwilling or unable to return an indictment based solely on Miller’s exaggeration of the amount of his claimed loss even though it had concluded that an indictment could be returned based on the overall scheme involving a use of the mail caused by Miller’s knowing consent to the burglary.” 715 F. 2d, at 1362-1363. B Miller’s indictment properly alleged violations of 18 U. S. C. § 1341, and it fully and clearly set forth a number of ways in which the acts alleged constituted violations. The facts proved at trial clearly conformed to one of the theories of the offense contained within that indictment, for the indictment gave Miller clear notice that he would have to defend against an allegation that he “‘well knew that the amount of copper claimed to have been taken during the alleged burglary was grossly inflated for the purpose of fraudulently obtaining $150,000 from Aetna Insurance Company.’” 715 F. 2d, at 1361-1362 (quoting indictment). Competent defense counsel certainly should have been on notice that that offense was charged and would need to be defended against. Accordingly, there can be no showing here that Miller was prejudicially surprised at trial by the absence of proof concerning his alleged complicity in the burglary; nor can there be a showing that the variance prejudiced the fairness of respondent’s trial in any other way. Cf. Kotteakos v. United States, 328 U. S. 750 (1946). See also Berger v. United States, 295 U. S. 78, 83 (1935). Cf. also United States v. Ballard, 322 U. S. 78, 91 (1944) (Stone, C. J., dissenting). The indictment was also sufficient to allow Miller to plead it in the future as a bar to subsequent prosecutions." }, { "docid": "22340796", "title": "", "text": "295 U. S. 78 (1935). In the instant case, since the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the Court of Appeals identified a variance between the pleadings and the Government’s proof at trial. However, reasoning that petitioner’s October 21 testimony was “inextricably related” to his September 30 declaration, the court concluded that petitioner could have anticipated that the prosecution would introduce the October testimony. 577 F. 2d, at 123. The court therefore determined that the variance was not fatal to the Government’s case. See Kotteakos v. United States, 328 U. S. 750, 757 (1946). In our view, it is unnecessary to inquire, as did the Court of Appeals, whether petitioner was prejudiced by a variance between what was alleged in the indictment and what was proved at trial. For we discern no such variance. The indictment charged inconsistency between petitioner’s statements in the September 30 interview and his grand jury testimony. That was also the theory on which the case was tried and submitted to the jury. Indeed, the October 21 testimony was introduced by the Government only in rebuttal to dispel any inference that petitioner’s grand jury testimony was true. See Tr. 82-83. But while there was no variance between the indictment and proof at trial, there was a discrepancy between the basis on which the jury rendered its verdict and that on which the Court of Appeals sustained petitioner’s conviction. Whereas the jury was instructed to rest its decision on Dunn’s September statement, the Tenth Circuit predicated its affirmance on petitioner’s October testimony. The Government concedes that this ruling was erroneous. Brief for United States 15, 35; Tr. of Oral Arg. 25. We agree. To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. New constitutional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused. See Eaton v. Tulsa, 415 U. S. 697, 698-699 (1974) (per curiam);" }, { "docid": "22762011", "title": "", "text": "Miller through the mail. Id., at 1361. Title 18 U. S. C. § 1341 reads as follows: “Whoever, having devised or intended to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” As is discussed supra, at 134-135, Miller has shown no prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment’s sufficiency to bar subsequent prosecutions, and the Court of Appeals did not rest on any such theories of prejudice. Cf. Kotteakos v. United States, 328 U. S. 750 (1946) (finding prejudice in a case of extreme variance between a charge of a very broad conspiracy and proof of far narrower but technically included conspiracies). See also Berger v. United States, 295 U. S., at 83. This analysis is apparent in Sam’s discussion of the issue: “The learned judge who presided ... at the time the change was made in this indictment. . . rests the validity of the court’s action in permitting the change in the indictment, upon the ground that the words stricken out were surplusage, and were not at all material to it, and that no" } ]

[ { "docid": "18751390", "title": "", "text": "Oil Co., 960 F.2d 728, 731-32 (8th Cir.1992); In re Manoa Finance Co., 853 F.2d 687, 691 (9th Cir.1988) (“Despite these differences [with fee-shifting statutes] we conclude that § 330 and fee shifting statutes are sufficiently similar to justify applying the same general principles for fee enhancements.”); In re Casco Bay Lines, Inc., 25 B.R. 747 (1st Cir. BAP 1982) (applying Furtado v. Bishop, 635 F.2d 915 (1st Cir.1980), to a bankruptcy fee application). . While the phrase \"qualily of representation” is linguistically distinct from the phrase \"results obtained,” this Court considers them to be two sides of the same cause — effect relationship. See In re Apex Oil Co., 960 F.2d 728, 732 n. 5 (8th Cir.1992) (“Arguably, the quality of representation and results obtained are a single factor rather than two separate factors because the quality of representation is often measured by the results achieved.”). The First Circuit has recently joined the concepts as a single \"Exceptional Performance/Results Enhancement” topic in Lipsett v. Blanco, 975 F.2d 934, 942 (1st Cir.1992). .The First Circuit adopted the Johnson factors methodology in King v. Greenblatt, 560 F.2d 1024 (1st Cir.1977), then seemingly abandoned them in favor of the lodestar methodology in Furtado v. Bishop, 635 F.2d 915 (1st Cir.1980). But Cf. In re Casco Bay Lines, Inc., 25 B.R. 747 (1st Cir. BAP 1982) (\"In recognition of the deficiencies inherent in the Johnson approach but not in abrogation thereof, the ‘lodestar’ theory for fee setting developed.... in this Circuit in Furtado v. Bishop ... [T]he lodestar is an attempt to provide an analytical framework for the trial court’s application of the Johnson/King criteria.”). The First Circuit BAP panel \"suggest[ed] the bankruptcy judge should reserve such an adjustment [based on results obtained] until the lodestar is determined.” Casco Bay Lines, 25 B.R. at 756; see also In re D.C. Sullivan & Co., 69 B.R. 212, 216 (Bankr.D.Ma.1986) (\"The lodestar method is still evolving.”). . See discussion at subheading \"f” infra. . See discussion at subheading \"d” infra. . See footnote 6 supra. . The Court notes that Rule 1.5 of the ABA" } ]

[ { "docid": "19283221", "title": "", "text": "uses later acquired funds or production to pay off previous investors.”) (citation omitted); see also Bayou Superfund, LLC v. WAM Long/Short Fund II, L.P. (In re Bayou Grp., LLC), 362 B.R. 624, 633 (Bankr.S.D.N.Y.2007) (“[T]he label ‘Ponzi scheme’ has been applied to any sort of inherently fraudulent arrangement under which the debtor-transferor must utilize after-acquired investment funds to pay off previ ous investors in order to forestall disclosure of the fraud.”) (citations omitted). The Defendants argue that there is no longer a Ponzi scheme presumption after the Second Circuit’s decision in Sharp Int’l Corp. v. State St. Bank & Trust Co. (In re Sharp Int’l Corp.), 403 F.3d 43 (2d Cir.2005). See Transcript of Hr’g 94:8-9, Apr. 5, 2011, ECF Doc. # 52, Apr. 5, 2011 (“For the record, I don’t believe the Ponzi scheme presumption still exists.... ”). The Court rejects this argument out of hand. Sharp did not involve a Ponzi scheme and the Second Circuit did not discuss or refer to the Ponzi scheme presumption or Ponzi schemes in general. See Manhattan Inv. Fund Ltd., 397 B.R. at 10-11 (“First, Sharp did not involve a Ponzi scheme and the court did not discuss the Ponzi scheme presumption. Therefore, there is no reason to ignore the long line of cases that support the presumption’s continuing existence.”) (citations omitted). Indeed, this Court has applied the Ponzi scheme presumption in a recent decision, as have other courts in this district post-Sharp. See, e.g., The 1031 Tax Grp., 420 B.R. at 189-90 (Glenn, J.); see also Bayou Accredited Fund, LLC v. Redwood Growth Partners, L.P. (In re Bayou Grp., LLC), 439 B.R. 284, 303 (S.D.N.Y.2010) (Gardephe, J.); Drenis v. Haligiannis, 452 F.Supp.2d 418, 429-30 (S.D.N.Y.2006) (Holwell, J.); Picard v. Stanley Chais (In re Bernard L. Madoff Inv. Secs. LLC), 445 B.R. 206, 220-21 (Bankr. S.D.N.Y.2011) (Lifland, J.); Bernard L. Madoff Inv. Secs. LLC, 440 B.R. at 255 (Lifland, J.). The Defendants also assert that, even if the Ponzi scheme presumption applies, they are entitled to the “good faith\" defense of Bankruptcy Code § 548(c) at the motion to dismiss stage because" }, { "docid": "4579020", "title": "", "text": "investment banks. See In re Lincoln Hosp. Medical Center, Inc. 234 Fed.Appx. 426, 428, 2007 WL 1170924, *1 (9th Cir. 2007). . In re AroChem Corp., 176 F.3d at 629 (citing In re BH & P, 949 F.2d at 1310 n. 12). . Id. . See In re Marvel Entertainment Group, Inc., 140 F.3d 463, 476 (3rd Cir.1998). . In re Cook, 223 B.R. at 789 (citing In re BH & P Inc., 949 F.2d at 1309) (in turn quoting Roberts, 46 B.R. at 828 n. 26). . Id., at 790. . In re EZ Links Golf, LLC, 317 B.R. 858, 863 (Bankr.D.Colo.2004). . See AroChem Corp., 176 F.3d at 623; Matter of Carter, 116 B.R. 123, 127 (E.D.Wis.1990). . 11 U.S.C. § 327(c). See AroChem Corp. 176 F.3d at 624. . See In re BH & P, Inc., 949 F.2d at 1314. . In re Cook, 223 B.R. at 790. . Interwest Business Equipment, Inc., 23 F.3d at 316. . In re BH & P, Inc., 949 F.2d at 1315 (citing In re Star Broadcasting, Inc., 81 B.R. 835, 844 (Bankr.D.N.J.1988); In re Hoffman, 53 B.R. 564, 566 (Bankr.W.D.Ark. 1985)). . In re Git-N-Go, Inc., 321 B.R. at 58 (quoting In re BH & P, Inc., 103 B.R. 556, 563 (Bankr.D.N.J.1989)), aff'd in pertinent part, 119 B.R. 35 (D.N.J.1990). . See ABA Rule 1.9, comment [5], . See In re Filene's Basement, Inc., 239 B.R. 850, 857 (Bankr.D.Mass.1999); In re Granite Partners, L.P., 219 B.R. 22, 34 (Bankr.S.D.N.Y.1998). . See In re Snyder, 472 U.S. 634, 645 n. 6, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985) (A state code of professional responsibility did not by its own terms apply to attorney sanctions in the federal courts, but a federal court, in exercising its inherent power under the standards imposed by federal law, may charge attorneys with the knowledge of, and conformity to, state codes); see also U.S. Trustee v. S.S. Retail Stores Corp. (In re S.S. Retail Stores Corp.), 211 B.R. 699, 703 (9th Cir. BAP1997) (Although California law provides for a waiver of a conflict, the Bankruptcy Code" }, { "docid": "308987", "title": "", "text": "extraordinary effort, In re Aminex Corp., 15 B.R. 356, 364 (Bankr. S.D.N.Y.1981); (3) The full payment of all creditors, In re D.W.G.K Restaurants, 106 B.R. 194, 197 (Bankr.S.D.Cal.1989); (4) The expedience with which the professional performed its duties, In re Summit Communities of Florida, Inc., 84 B.R. 863, 871 (Bankr. S.D.Fla.1988); (5) The difficulty in finding counsel in the local or other relevant market, Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987); (6) The delay in receiving fees from the time the services were performed, In re White Motor Credit Corp., 50 B.R. 885 (Bankr.N.D.Ohio 1985); (7) The initial risk or contingency of nonpayment of any legal fees, In re Southern Merchandise Distributors, Inc., 117 B.R. 725, 728 (Bankr.S.D.Fla.1990); (8) The existence of factors not initially considered in calculating the professional’s standard fee, In re White Motor Credit Corp., 50 B.R. 885, 889 (Bankr.N.D.Ohio 1985); (9) The nunc pro tunc adjustment of original retention orders to avoid inequity, In re Churchfield Management & Invest. Corp., 98 B.R. 838, 854 (Bankr.N.D.Ill.1989); (10) The ratio of the bonus request to the time spent, In re Penn-Dixie Industries, Inc., 18 B.R. 834, 837 (Bankr.S.D.N.Y.1982); and (11) Whether the entire legal fee, including the bonus, appears to be excessive as that term is used in the American Bar Association Model Code of Professional Responsibility, Disciplinary Rule 2-106(B), In re Southern Merchandise Distributors, Inc., 117 B.R. 725, 726 (Bankr.S.D.Fla.1990). In re Blue Coal Corp., 206 B.R. 721, 723-24 (Bankr.M.D.Pa.1997). However, there is a strong presumption that the lodestar amount represents reasonable compensation. Id-; Blum, 465 U.S. at 897, 104 S.Ct. 1541. See also UNR Indus., Inc., 986 F.2d at 211; Burgess v. Klenske (In re Manoa Fin. Co.), 853 F.2d 687, 691 (9th Cir.1988); Grant, 908 F.2d at 880-81; First Am. Health Care of Ga., Inc., 212 B.R. at 417-18. Although Special Counsel did not specifically request enhancement and there was no agreement for enhanced compensation based on the risk of non-payment, the Court finds that it is not warranted. In reviewing the adversary" }, { "docid": "11718081", "title": "", "text": "242 (Bankr.M.D.Pa.1990) and Lund v. Affleck, 587 F.2d 75 (1st Cir.1978)). “[Fjutile efforts aimed at achieving unattainable objectives are unreasonable.” In re Saturley, 131 B.R. 509, 521 (Bankr.D.Me.1991). Moreover, it is “ ‘inherently unreasonable to ask a debtor to reimburse attorneys’ fees incurred by a creditor that are not cost justified ... or necessary to preservation of the creditor’s interest.’ ” In re Reposa, 94 B.R. at 262 (quoting In re Miracle Enterprises, Inc., 57 B.R. 133, 136 (Bankr.D.R.I.1986)). A creditor’s counsel’s fee application should be unambiguous and virtually self-contained so that by reviewing it and the underlying itemized billing information, the court can reach an informed determination of the reasonable fee. In re Huhn, 145 B.R. at 875. See Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir.1984); King v. Greenblatt, 560 F.2d 1024, 1027 (1st Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978); In re New England Metal Co., Inc., 155 B.R. 38, 41 (Bankr.D.R.I.1993). See also R.I. Local Bankr. Rule 25 (requiring detailed itemization in fee applications). Fee requests will be reduced: “(1) whenever we are unable to ascertain the nature of the service provided; (2) wherever it is unclear whether the activity involved collection of the obligation in question; or (3) wherever the hours expended are not stated.” In re Reposa, 94 B.R. at 259. See also In re Huhn, 145 B.R. at 875. After reviewing the fee application independently, my job is to determine a reasonable hourly rate and the number of hours counsel reasonably expended within the scope of the creditor’s contractual fee entitlement, employing the lodestar model to determine a reasonable fee. See Boston & Maine Corp. v. Sheehan, Phinney, Bass & Green, P.A. (In re Boston & Maine Corp.), 778 F.2d 890, 895-96 (1st Cir.1985); In re Casco Bay Lines, 25 B.R. 747 (Bankr. 1st Cir.1982); In re Saturley, 131 B.R. at 521. I commence consideration of the fee request by evaluating Shafner & Gillerman’s fee application in the context of Fischer’s contractual entitlements, noting the' problems that it presents. b.Lumping. It is difficult to" }, { "docid": "11733424", "title": "", "text": "absence of a clause which so states.”); In re South Side House, LLC, 451 B.R. 248, 268 (Bankr.E.D.N.Y.2011) (“[A] lender is not entitled to prepayment consideration after a default unless the parties’ agreement expressly requires it.”), aff'd U.S. Bank Nat’l Ass’n v. South Side House, LLC, No. 11-4135, 2012 WL 273119 (E.D.N.Y. Jan. 30, 2012); In re Premier Entm’t Biloxi LLC, 445 B.R. 582, 626; Hr’g Tr. 36:9-14, In MPM Silicones, LLC, et al., No. 14-22503, 2014 WL 4436335, at *13-14 (Bankr.S.D.N.Y. Sept. 9, 2014) (“Momentive”). 48. The parties certainly could have bargained for such a provision. In many other cases — including cases decided before August of 2010, when this Indenture was negotiated — clauses specifically requiring post-acceleration payment of a make-whole, prepayment premium, or certain costs were upheld. See, e.g., United Merchs. & Mfgrs., Inc. v. Equitable Life Assurance Soc’y of the United States (In re United Merchs. & Mfrs., Inc.), 674 F.2d 134, 141-43 (2d Cir.1982); Parker Plaza W. Partners v. UNUM Pension & Ins. Co., 941 F.2d 349, 355-56 (5th Cir.1991); Teachers Ins. & Annuity Ass’n of Am. v. Butler, 626 F.Supp. 1229, 1230 (S.D.N.Y.1986); In re AE Hotel Venture, 321 B.R. 209, 217-20 (Bankr.N.D.Ill.2005); In re Vanderveer Estates Holdings, Inc., 283 B.R. 122, 126-27 (Bankr.E.D.N.Y.2002); In re Fin. Ctr. Assocs. of E. Meadow L.P., 140 B.R. 829, 834-35 (Bankr.E.D.N.Y.1992); In re Schaumburg Hotel Owner, 97 B.R. 943, 952-54 (Bankr.N.D.Ill.1989). The Indenture here was negotiated at arm’s length between sophisticated parties who were represented by counsel. The Court is unwilling to “read[] into agreements between sophisticated parties provisions that are not there.” In re Solutia, 379 B.R. 473, 485 n.7 (Bankr.S.D.N.Y.2007). 49. The EFIH Debtors’ reading is also correct based on well-accepted canons of contract interpretation. Under established principles of New York law, “a specific provision ... governs the circumstance to which it is directed, even in the face of a more general provision.” In re AMR Corp., 730 F.3d 88, 99 (2d Cir.2013) (citation omitted), cert denied, — U.S. -, 134 S.Ct. 1888, 188 L.Ed.2d 913 (2014); Muzak Corp., 150 N.Y.S.2d 171, 133 N.E.2d at" }, { "docid": "15417184", "title": "", "text": "at 39 (finding that \"consideration of these [four] factors clearly would weigh against the granting of the requested stay” (emphasis added)). . See In re Albicocco, No. 06-CV-3409, 2006 WL 2620464, at *1 n. 2 (E.D.N.Y. Sept. 13, 2006) (collecting cases, but declining to decide the question of the appropriate standard of review because the stay “should be denied under even the more generous standard, which treats the criteria as factors to be balanced rather than elements that all have to be necessarily satisfied”). . I note, however, that for the reasons discussed below, the result here would be the same even under the more stringent test. . Rothenberg v. Ralph D. Kaiser Co., 200 B.R. 461, 463 (D.D.C.1996) (quotations omitted). Accord Stern v. Bambu Sales, Inc., 201 B.R. 44, 46 (E.D.N.Y.1996) (denying stay pending appeal where movant failed to show irreparable harm). . Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989) (quotation marks and citation omitted). . See, e.g., In re Sunflower Racing, Inc., 223 B.R. 222, 225 (D.Kan.1998); In re 203 N. LaSalle St. P’ship, 190 B.R. 595, 598 (N.D.Ill.1995); In re Best Prods. Co., 177 B.R. 791, 808 (S.D.N.Y.), aff'd on other grounds, 68 F.3d 26 (2d Cir.1995); In re Clark, No. 95 C 2773, 1995 WL 495951, at *6 (N.D.Ill. Aug. 17, 1995); In re Moreau, 135 B.R. 209, 215 (N.D.N.Y.1992); In re MAC Panel Co., No. 98-10952C-11G, 2000 WL 33673784, at *4 (Bankr.M.D.N.C.2000) (collecting cases); In re Kent, 145 B.R. 843, 844 (Bankr.E.D.Va.1991); In re Charter Co., 72 B.R. 70, 72 (Bankr.M.D.Fla.1987); In re Great Barrington Fair & Amusement, Inc., 53 B.R. 237, 240 (Bankr.D.Mass.1985); In re Baldwin United Corp., 45 B.R. 385, 386 (Bankr.S.D.Ohio 1984). . See, e.g., In re Norwich Historic Pres. Trust, LLC, No. 3:05CV12, 2005 WL 977067, at *3 (D.Conn.2005) (acknowledging “persuasive” arguments that although foreclosure sale would not injure appellant, appellant’s concern that his appeal would be mooted satisfied the irreparable harm requirement); In re Country Squire, 203 B.R. at 183 (staying a foreclosure sale where it was \"apparent that absent a stay pending appeal ..." }, { "docid": "15823161", "title": "", "text": "Valley Corp., 168 B.R. 73 (Bankr.D.N.J. 1994) which denied vote to a class that plan would cash out on effective date]; and \"The Fight Over Artificial Impairment Under § 1129(a)(10): It's Time to Call it Quits,” by Clemency & Harris, ABI Journal, Nov. 1995. . See, e.g., Beal Bank, S.S.B. v. Waters Edge Ltd. Partnership, 248 B.R. 668, 690-91 (D.Mass.2000); In re Memorial Products Co. Inc., 212 B.R. 178, 183-84 (1st Cir. BAP 1997); In re Fur Creations by Varriale, Ltd., 188 B.R. 754, 760 (Bankr.S.D.N.Y.1995); In re Dunes Hotel Associates, 188 B.R. 174 (Bankr.D.S.C.1995). . Equitable Life Ins. Co. of Iowa v. Atlanta-Stewart Partners (In re Atlanta-Stewart Partners), 193 B.R. 79, 82 (Bankr.N.D.Ga.1996). . See In re New Midland Plaza Associates, 247 B.R. 877, 896 (Bankr.S.D.Fla.2000); In re Crosscreek Apartments, Ltd., 213 B.R. 521, 536 (Bankr.E.D.Tenn.1997); In re Seasons Apartments, Ltd. Partnership, 215 B.R. 953 (Bankr.W.D.La.1997) [unsecured class impaired, paid in full without interest]; In r& Park Forest Development Corp., 197 B.R. 388, 395 (Bankr.N.D.Ga.1996). . 251 B.R. 213, 240 (Bankr.D.N.J.2000) . Id. (citation omitted). . 11 U.S.C. § 1129(a)(11). . In re Stratford Associates Limited Partnership, 145 B.R. 689, 697 (Bankr.D.Kan.1992) (citing In re Orlando Investors, L.P., 103 B.R. 593, 600 (Bankr.E.D.Pa.1989)). See also Matter of King Resources Co., 651 F.2d 1326 (10th Cir.1980) (''[feasibility means that the reorganized company will emerge from the proceeding in a solvent condition with reasonable prospects of financial stability and success”). . In re Ames, 973 F.2d 849, 851 (10th Cir. 1992), cert, denied, 507 U.S. 912, 113 S.Ct. 1261, 122 L.Ed.2d 658 (1993). . In re Pikes Peak Water Co., 779 F.2d 1456, 1460 (10th Cir. 1985) (quoting Matter of Pizza of Hawaii, Inc., 761 F.2d 1374, 1382 (9th Cir. 1985)). . In re Pikes Peak Water Co., 779 F.2d 1456, 1460 (10th Cir.1985); In re Stratford Assocs. Ltd. Partnership, 145 B.R. at 697. .Miller testified at trial that if the cure amount exceeded $475,000, the oral Plan modification would be to pay a lump sum of $375,000 on the Effective Date and pay the balance over two years. . Debtor’s" }, { "docid": "12921029", "title": "", "text": "recover attorney’s fees under paragraph (4). This argument tracks the trial court’s explanation set out above. This issue of statutory interpretation has, as far as we have been able to discover, been addressed by only one other court. In In re Marquam Investment Corp., 176 B.R. 34 (Bankr.D.Or.1994), the court awarded fees and specifically held that a creditor who incurred no direct costs could nevertheless recover attorney’s fees under § 503(b)(4). Id. at 37. Several courts have awarded fees under § 503(b)(4) where there were apparently no other expenses incurred — that is, no allowable expenses under § 503(b)(3) other than the professional’s fees. However, none of the cases includes a discussion or even a recognition of the issue. See e.g., In re U.S. Lines, Inc., 103 B.R. 427, 432 (Bankr.S.D.N.Y.1989) aff'd, No. 90 Civ. 3823, 1991 WL 67464 (S.D.N.Y. Apr. 22, 1991); In re Catalina Spa & R.V. Resort, Ltd., 97 B.R. 13 (Bankr.S.D.Cal.1989); In re Stoecker, 128 B.R. 205 (Bankr.N.D.Ill.1991); In re McLean Industries, Inc., 88 B.R. 36 (Bankr.S.D.N.Y.1988); In re Roberts, 93 B.R. 442 (D.S.C.1988)(matter remanded for determination of amount of fees to be awarded under § 504(b)(4)); In re Paolino, 71 B.R. 576 (Bankr.E.D.Pa.1987); In re Fall, 93 B.R. 1003, 1012 (Bankr.D.Or.1988); In re Granite Partners, L.P., 213 B.R. 440 (Bankr.S.D.N.Y.1997). In Matter of DP Partners Ltd. Partnership, 106 F.3d 667 (5th Cir.1997), cert. denied, DP Partners, Ltd. Partnership v. Hall Financial Group, Inc., _ U.S. _, 118 S.Ct. 63, 139 L.Ed.2d 26 (1997), the Fifth Circuit recently stated: A closely-related but separate provision is subsection (b)(4)_ This provision is expressly dependent upon a claimant qualifying for an administrative expense award in subsection (3), which requires that expenses, other than professional fees, be actual and necessary. Id. at 674. However, the court appeared inclined to award attorneys’ fees notwithstanding that statement, even though there was no indication that the creditor had an independent expense claim. The matter was remanded for a determination of the amount of fees. Collier’s discusses the section, but sheds little light on the particular issue: Section 503(b)(4) is designed to permit reasonable" }, { "docid": "4590822", "title": "", "text": "Holding, Inc., No. 08-41374, 2009 WL 349832, at *3 (Bankr.E.D.Tex. Feb 05, 2009); Official Comm, of Unsecured Creditors of Verestar, Inc. v. Am. Tower Corp. (In re Verestar, Inc.), 343 B.R. 444, 462 (Bankr.S.D.N.Y.2006); Gray v. O’Neill Props. Group, L.P. (In re Dehon, Inc.), No. 02-41045, 2004 WL 2181669, at *3 (Bankr.D.Mass. Sept.24, 2004); In re Worldcom, Inc., No. 02-13533(AJG), 2003 WL 23861928, at *35 (Bankr.S.D.N.Y. Oct 31, 2003); Bonham, 226 B.R. at 76; Cent. Claims Servs., Inc. v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.,), 192 B.R. 903, 907 (Bankr.S.D.Ohio 1996); In re Drexel Burnham Lambert Group, Inc., 138 B.R. 723, 764 (Bankr.S.D.N.Y.1992); Lease -A-Fleet, 141 B.R. at 874; In re Murray Indus., Inc., 119 B.R. 820, 829 (Bankr.M.D.Fla.1990); Munford, Inc. v. TOC Retail, Inc. (In re Munford), 115 B.R. 390, 397 (Bankr.N.D.Ga.1990); Julien Co., 120 B.R. at 934; In re Crown Mach. & Welding, Inc., 100 B.R. 25, 27 (Bankr.D.Mont.1989); In re I.R.C.C., Inc., 105 B.R. 237, 242, (Bankr.S.D.N.Y.1989); In re Donut Queen, Ltd., 41 B.R. 706, 709 (Bankr.E.D.N.Y.1984); Stop & Go, 49 B.R. at 747; DRW Property, 54 B.R. at 495; In re Crabtree, 39 B.R. 718, 723 (Bankr.E.D.Tenn.1984); Snider Bros., 18 B.R. at 234; In re Richton Int’l Corp., 12 B.R. 555, 558 (Bankr.S.D.N.Y.1981). . See, e.g., Kheel, 369 F.2d at 847; Continental Vending Mach., 517 F.2d at 1000; Cintra Realty, 413 F.2d at 303; Pemberton v. Davis, 403 F.2d 515, 519 (9th Cir.1968); Commercial Envelope, 1977 WL 182366, at *3; British Columbia Inv. Co. v. FDIC, 420 F.Supp. 1217, 1225 (S.D.Cal.1976); D.H. Overmyer, 1976 WL 168421, at *7; In re Security Prod. Co., 310 F.Supp. 110, 116 (E.D.Mo.1969); In re Ira Haupt & Co., 289 F.Supp. 966, 972 (S.D.N.Y.1968); In re Seatrade Corp., 255 F.Supp. 696, 699 (S.D.N.Y.1966); Food Fair, 10 B.R. at 126; In re Barnett, 5 B.R. 525, 526 (Bankr.D.N.M.1980); Vecco Const., 4 B.R. at 409; A & I Realty Corp. v. Kent Dry Cleaners, Inc., 61 Misc.2d 887, 307 N.Y.S.2d 99, 101 (N.Y.1969). . The trustee in Sampsell had asked the bankruptcy referee to marshal the non-debt- or's assets for the" }, { "docid": "13179962", "title": "", "text": "(\"A fact is material if it might affect the outcome of the case, and an issue is genuine if the evidence is such that a reasonable factfinder [sic] could return a verdict in favor of the nonmovant.”). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (\"Where 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”). . Argus Mgmt. Group v. GAB Robins, Inc. (In re CVEO Corp.), 327 B.R. 210, 214 (Bankr.D.Del.2005) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). . Id. at 210 (citing Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 301 (3d Cir.1995)). . UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir.2004) (citing Suders v. Easton, 325 F.3d 432, 435 n. 2 (3d Cir.2003)). See also Interim Investors Comm. v. Jacoby, 90 B.R. 777, 780 (W.D.N.C.1988), aff'd, 914 F.2d 1491, 1990 WL 136663 (4th Cir.1990); In re Holzinger, 89 B.R. 529, 530 (Bankr.E.D.Pa.1988); and In re Pashi, 88 B.R. 456, 457 (Bankr.N.D.Ga.1988). . In re Cantin, 114 B.R. 339, 341 (Bankr.D.Mass.1990); and In re Dempster, 59 B.R. 453, 455 (Bankr.M.D.Ga.1984). . Id. See also Mesnick, 950 F.2d at 822. . Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989). . Id. See also Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. . Id. See also In re CVEO Corp., 327 B.R. at 213. . See, e.g., Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992). . PTC v. Robert Wholey & Co. (In re Fleming Cos.), 2006 Bankr.LEXIS 896 at *3 (Bankr.D.Del.2006) (citing Matsushita Elec. Indus. Co., 106 S.Ct. at 1356). . Celotex Corp., 477 U.S. at 317, 106 S.Ct. 2548. . 11 U.S.C. § 547(b). See also Radnor Holdings Corp. v. PPT Consulting, LLC (In re Radnor Holdings Corp.), Case No. 06-10894, 2009 Bankr.LEXIS 1815, at *7-8 (Bankr.D.Del. July 9, 2009). . Id. at §" }, { "docid": "598545", "title": "", "text": "In re St. Clair, 251 B.R. 660, 669 (D.N.J.2000), aff'd, 281 F.3d 224 (3d Cir.2001); In re Townsville, 268 B.R. 95, 125 (Bankr.E.D.Pa.2001); In re Fritz, 225 B.R. 218, 219-20 (E.D.Wash.1997). . See, e.g., Worthy v. World Wide Fin. Servs., Inc., 347 F.Supp.2d 502, 508-09 (E.D.Mich.2004), aff'd, 192 Fed.Appx. 369 (6th Cir.1006); Zeoli v. RIHT Mortgage Corp., 148 B.R. 698, 701 (D.N.H.1993); In re Fine, 285 B.R. 700, 702 (Bankr.D.Minn.2002); In re Heron Pond, LLC, 258 B.R. 529, 530 (Bankr.D.Mass.2001); Atlas Mach. & Iron Works, Inc. v. Bethlehem Steel Corp. (In re Atlas Mach. & Iron Works, Inc.), 239 B.R. 322, 329-333 (Bankr.E.D.Va.1998). . There is one unpublished decision of the United States Court of Appeals for the Tenth Circuit that states mailing of a \"Notice of Hearin Motion to Confirm and Approve Sheriff’s Sale” was a violation of Rule 4001(ai)(3). However, this statement is made in a footnote and the details of the facts are not given. In re Conner, 37 Fed.Appx. 445, 448 n. 3 (10th Cir.2002). . Roche v. Franklin First Fed. Sav. Bank (In re Roche), 228 B.R. 102, 103 (Bankr.M.D.Pa.1998) (emphasis added) (hereafter \"Roche”). . Pa. R.C.P. No. 3129.3(b). The rule has now been amended to permit two postponements within a period of 130 days of the scheduled sale without giving new notice. . Barnett Bank of Se. Ga., N.A. v. Trust Co. Bank of Se. Ga., N.A. (In re Ring), 178 B.R. 570 (Bankr.S.D.Ga.1995). . Id. at 574. . 143 B.R. 295 (Bankr.D.D.C.1992). . Id. at 303. . 23 B.R. 239 (Bankr.E.D.Pa.1982). . Id. at 240. . 483 F.3d 653 (10th Cir.2007). . Id. at 655 (citation to bankruptcy court decision omitted). . See § 362(d) (“On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay ...’’) (emphasis added). . For example, bankruptcy courts often enter orders agreed to by a debtor and a mortgagee maintaining the automatic stay in place so long as certain conditions" }, { "docid": "4567259", "title": "", "text": "be rendered in accordance with this Memorandum Opinion. . Exh. MX1. . Id. . Id. . For the reasons set forth in this Court’s earlier ruling (pl.56), the contracts protected under 11 USC § 546(e) are contracts not traded or subject to the rules of a contract board of trade. See, 11 USC §§ 101(25) and 761(4). . PL 56; See also, U.S. v. Reliant Energy Services, Inc., 420 F.Supp.2d 1043 (N.D.Cal. 2006). See also, In re Nat’l Energy & Gas Transmission, Inc., 492 F.3d 297, 299 (4th Cir.2007); In re Erving Industries, Inc., 2010 WL 1416148 (Bankr.D.Mass.2010); In re Mirant Corp., 334 B.R. 800, 805 (Bankr.N.D.Tex. 2005); In re Enron Corp., 274 B.R. 327, 334 (Bankr.S.D.N.Y.2002); In re Olympic Natural Gas, 258 B.R. 161, 163 (Bankr.S.D.Tex.2001); In re Camelot Motors Corp., 86 B.R. 520, 523 (Bankr.W.D.Mich.1988); In re Charles Town Light & Power Co., 183 F. 160, 163 (D.C.W.Va.1910). . Exh. MX5. . Missouri Pacific R. Co. v. Lely Development Corp., 86 S.W.3d 787, 792 (Tex.App.Austin 2002). . Id. . Williams v. Morgan Stanley Capital Group Inc. (In re Olympic Natural Gas Co.), 294 F.3d 737 (5th Cir.2002). . Hutson v. E.I. du Pont de Nemours and Co., Inc. (In re National Gas Distributors, LLC), 556 F.3d 247 (4th Cir.2009). . 11 U.S.C. § 546(e). . Williams v. Morgan Stanley Capital Group Inc. (In re Olympic Natural Gas Co.), 294 F.3d 737 (5th Cir.2002); In re Borden Chemicals and Plastics Operating L.P., 336 B.R. 214 (Bankr.D.Del.2006); Hutson v. M.J. Soffe Co. (In re National Gas Distributors), 412 B.R. 758 (Bankr.E.D.N.C.2009); and Hutson v. E.I. du Pont de Nemours and Co., Inc. (In re National Gas Distributors, LLC), 556 F.3d 247 (4th Cir.2009). . Hutson v. M.J. Soffe Co. (In re National Gas Distributors), 412 B.R. 758 (Bankr. E.D.N.C.2009). . In re Olympic Natural Gas Co., 294 F.3d at 742. See also, Hutson v. E.I. du Pont de Nemours and Co., Inc. (In re National Gas Distributors, LLC), 556 F.3d 247 (4th Cir. 2009) (supply contracts between industry participants are not per se excluded as forward contracts). This case is" }, { "docid": "23112854", "title": "", "text": "363(f)(3) to sell free and clear of the property rights of junior lienholders whose nonbankruptcy liens are not supported by the collateral’s value. That is, there may be a sale free and clear of “out-of-the-money” liens. See, e.g., In re Beker Indus. Corp., 63 B.R. 474, 476-77 (Bankr.S.D.N.Y.1986); In re Terrace Gardens Park P’ship, 96 B.R. 707 (Bankr.W.D.Tex.1989); In re Oneida Lake Dev., Inc., 114 B.R. 352 (Bankr.N.D.N.Y.1990); In re WPRV-TV, Inc., 143 B.R. 315, 320 (D.P.R.1991); Milford Group, Inc. v. Concrete Step Units, Inc. (In re Milford Group, Inc.), 150 B.R. 904, 906 (Bankr.M.D.Pa.1992); In re Collins, 180 B.R. 447, 450-51 (Bankr.E.D.Va.1995). We disagree. This reading expands § 363(f)(3) too far. It would essentially mean that an estate representative could sell estate property free and clear of any lien, regardless of whether the lienholder held an allowed secured claim. We think the context of paragraph (3) is inconsistent with this reading. If Congress had intended such a broad construction, it would have worded the paragraph very differently. See Ron Pair Enters., 489 U.S. at 242 n. 5, 109 S.Ct. 1026 (Congress knows distinction between types of liens, and language of the Bankruptcy Code should be interpreted in a way that acknowledges that knowledge). For this reason, many courts and commentators have rejected this approach. See, e.g., Richardson v. Pitt County (In re Stroud Wholesale, Inc.), 47 B.R. 999, 1002 (E.D.N.C.1985), aff'd mem., 983 F.2d 1057 (4th Cir.1986); Scherer v. Fed. Nat’l Mortgage Ass’n (In re Terrace Chalet Apartments, Ltd.), 159 B.R. 821 (N.D.Ill.1993); In re Perroncello, 170 B.R. 189 (Bankr.D.Mass.1994); In re Feinstein Family P’ship, 247 B.R. 502 (Bankr.M.D.Fla.2000); In re Canonigo, 276 B.R. 257 (Bankr.N.D.Cal.2002); Criimi Mae Servs. Ltd. P’ship v. WDH Howell, LLC (In re WDH Howell, LLC), 298 B.R. 527 (D.N.J.2003); see also In re Healthco Int’l, Inc., 174 B.R. 174 (Bankr.D.Mass.1994); 3 Collier on Bankruptcy ¶ 363.06[4][a] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.2008). But another reason, rooted in the text of the paragraph, exists to reject such an expansive reading. Paragraph (3) permits the sale free and clear only when" }, { "docid": "23584407", "title": "", "text": "is the lodestar approach, Boston & Maine Corp. v. Moore, 776 F.2d 2 (1st Cir.1985), which expands upon the criteria of Bankruptcy Code § 330(a)(1). It requires the court to determine a reasonable hourly rate and apply it to the time reasonably expended, and then perhaps adjust by various factors. Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.1984); M. Berenson Co. v. Faneuil Hall Marketplace, Inc., 671 F.Supp. 819 (D.Mass.1987). This language represents a shift from prior bankruptcy law, which emphasized the policies of conservation of the estate and economy of administration. In re Casco Bay Lines, Inc., 25 B.R. 747 (Bankr. App. 1st Cir.1982). The effort now is “to balance a spirit of economy on the one hand with fees sufficiently close to market rates to attract qualified counsel on the other.” Boston & Maine Corp. v. Sheehan, Phinney, Bass & Green, 778 F.2d 890, 898 (1st Cir.1985); In re WHET, Inc., 61 B.R. 709, 715 (Bankr.D.Mass.1986). Even without regard to objections by other parties in interest, the court has an independent judicial responsibility to evaluate professionals’ fees. In re First Software Corp., 79 B.R. 108 (Bankr.D.Mass.1987). “The court ... is itself an expert on the question (of attorney’s fees) and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of testimony of witnesses as to value.” In re WHET, Inc., 61 B.R. 709, 713 (Bankr.D.Mass.1986). TRAVEL TIME Some courts hold that travel time cannot be billed, although special exceptions may be made. E.g., In re Grimes, 115 B.R. 639 (Bankr.D.S.D.1990); In re Carter, 101 B.R. 170 (Bankr.D.S.D.1989); Jungkurth v. Eastern Financial Services, Inc., 87 B.R. 333, 337 (E.D.Pa.1988); In re S.T.N Enterprises, 70 B.R. 823, 837 (Bankr.D.Vt.1987); In re Seneca Oil Co., 65 B.R. 902, 909 (Bankr.W.D.Okla.1986); In re Pacific Express, Inc., 56 B.R. 859 (Bankr.E.D.Cal.1985); In re Four Star Terminals, Inc., 42 B.R. 419 (Bankr.D.Alaska 1984). Others allow for one half the attorney’s hourly rate. In re Environmental Waste Control, 122 B.R. 341 (Bankr.N.D.Ind.1990); In re Ginji Corp., 117" }, { "docid": "7267953", "title": "", "text": "Fender, 12 F.3d 480, 487 (5th Cir.1994). At least four (4) of the Johnson factors — the novelty and complexity of the issues, the special skill and experience of counsel, the quality of the representation, and the results obtained are presumably included in the lodestar calculation. Shipes v. Trinity Industries, 987 F.2d 311, 320 (5th Cir.1993). Upwards adjustments in bankruptcy cases are permissible provided the application shows rare and exceptional circumstances. In re El Paso Refinery, L.P., 257 B.R. 809, 835 (Bankr.W.D.Tex.2000). Thus, an upward adjustment from the lodestar amount may be made if the applicant proves the existence of “rare and extraordinary” circumstances and that these circumstances have not already been included in the lodestar calculation. Various courts have analyzed this in a multitude of ways. Some have suggested that rare and exceptional circumstances exist if there is a full payment of creditors. In re DWGK Restaurants, 106 B.R. 194, 197 (Bankr.S.D.Cal.1989). Other courts look for some special facts that set the case apart from others and whether non-bankruptcy professionals given those same special facts would be able to recover a higher fee for those results. In re El Paso Refinery, L.P., 257 B.R. at 837. That Court emphasized: The precise wording is important. The issue is not whether a comparable firm would reward its partners and employees for bringing in a good “result” (defined usually in terms of enhanced revenues for the firm) but whether the client would feel obliged to pay the firm a higher rate in return for a “rare and exceptional” result. In the usual case, it is this court’s understanding that such “kickers” are negotiated in advance of the engagement. To the extent that a similar “advance agreement” might be seen as a prerequisite, in order to bring our analysis into line with what happens in the marketplace outside of bankruptcy, the facts show that VL “negotiated” for just such a “kicker” in its original retention papers. Id. at 837-38 n. 55. The El Paso Court concluded: The thrust of the inquiry, then, is whether the surrounding factors of the case are such that," }, { "docid": "1082799", "title": "", "text": "F.2d 950, 953 (1st Cir.1976) (granting priority to administrative expenses encourages new creditors to conduct business with the debtor). The applicable two-pronged test, first laid out in Mammoth Mart, supra, requires that an administrative claim (1) arise out of a postpetition transaction between the creditor and the trustee or debtor in possession and (2) be allowable only to the extent that the consideration supporting the claimant’s right to payment was both supplied to and beneficial to the debtor’s estate in the operation of its business. In re Mammoth Mart, 536 F.2d at 954; Amalgamated Ins. Fund, supra, 789 F.2d at 101; In re CIS Corp., 142 B.R. 640, 643 (S.D.N.Y.1992); In re New York Trap Rock Corp., 137 B.R. 568, 572 (Bankr.S.D.N.Y.1992); In re Drexel Burnham Lambert Group Inc., 134 B.R. 482, 489 (Bankr.S.D.N.Y.1991) (citations omitted); In re Chateaugay Corp., supra, 115 B.R. at 772 (Bankr.S.D.N.Y.1990), aff'd, 130 B.R. 690 (S.D.N.Y.1991). In addition, strict construction of the terms “actual” and “necessary” keeps “administrative expenses at a minimum ... to preserve the estate for the benefit of all its creditors.” In re Drexel Burnham Lambert Group Inc., supra, 134 B.R. at 488 (quoting, Otte v. United States, 419 U.S. 43, 53, 95 S.Ct. 247, 254, 42 L.Ed.2d 212 (1974)). A claim is not entitled to priority simply because the right to payment arose after the commencement of the reorganization proceeding. Amalgamated Ins. Fund, supra, 789 F.2d at 101 (citation omitted). Rather, a claimant must show that the debtor induced the creditor’s performance to the benefit of the estate. A presumption exists that creditors act primarily in their own interests and not for the benefit of the estate. In re United States Lines, Inc., 103 B.R. 427, 430 (Bankr.S.D.N.Y.1989), aff'd, 1991 WL 67464, No. 90 Civ. 3823 (MGC) (S.D.N.Y. April 22, 1991). A claimant must satisfy the Mammoth Mart test by a preponderance of the evidence. In re Drexel Burnham Lambert Group Inc., supra, 134 B.R. at 489 (citation omitted); In re O.P.M. Leasing Serv., Inc., 60 B.R. 679, 680 (Bankr.S.D.N.Y.1986). Pension Trustee argues that the Minimum Funding Claim, like a severance" }, { "docid": "13675969", "title": "", "text": "25 B.R. 747 (1st Cir. BAP 1982); In re Thomas, Inc., 43 B.R. 510 (Bankr.D.Mass.1984); In re Malden Mills, Inc., 42 B.R. 476 (Bankr.D.Mass.1984). Under the lodestar analysis, the court first establishes a threshold point of reference or the “lodestar,” which is the number of hours reasonably spent by each attorney multiplied by his reasonable hourly rate. Boston & Maine Corp., 776 F.2d at 6. This lodestar can then be adjusted up or down based on consideration of some or all of the following twelve factors: (1) time and labor required; (2) the novelty and difficulty of the questions presented by the case; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time pressures imposed by the client or the circumstances, (8) the amount involved and results obtained as a result of the attorneys’ services; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; (12) awards in similar cases. In re Public Serv. Co. of New Hampshire, 160 B.R. 404, 413 (Bankr.D.N.H.1993) (citing Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “While calculation of the lodestar is a useful, and often mandatory, starting point when the customary agreed-upon fee is based on an hourly charge, it is not the sole benchmark for measuring the reasonableness of any and all attorney fees, regardless of the ‘mode and measure.’ ” Boston & Maine Corp. v. Sheehan, Phinney, Bass & Green, P.A., 778 F.2d 890, 894-95 (1st Cir.1985). The cornerstones in the lodestar analysis are the reasonableness of the hours spent and the hourly rate sought. See In re Spillane, 884 F.2d at 647 (citing In re Casco Bay Lines, Inc., 25 B.R. 747, 758 (1st Cir. BAP 1982)). In determining-how many hours were reasonable, the court must review the work to see “whether counsel" }, { "docid": "12009243", "title": "", "text": "That amount fits squarely in the range that the Court has found to be the value of the shares at the time. The question of what amount ASARCO needed to stay afloat, however, is a separate consideration from whether ASARCO received reasonably equivalent value for the asset transferred. . As discussed infra, the Court finds that ASARCO was \"insolvent” at the time of the challenged transfer. The Court discusses insolvency in determining whether ASARCO's directors owed a fiduciary duty to ASARCO's creditors. The parties agreed that the tests for \"insolvency” are the same in the breach of fiduciary duty context as they are under the constructive fraudulent transfer provision of the UFTA. Therefore, had ASARCO not received REV, AMC would be liable for constructive fraudulent transfer. . Compare 11 U.S.C. § 548(a)(1)(A) (\"The trustee may avoid any transfer ... of an interest of the debtor, if the debtor ... made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity ...”), with 6 Del. C. § 1304(a)(1) (“A transfer made or obligation incurred by a debtor is fraudulent as to a creditor ... if the debtor made the transfer or incurred the obligation ... [w]ith actual intent to hinder, delay or defraud any creditor of the debtor.”). . See Epperson v. Entm't Exp., Inc., 159 Fed.Appx. 249, 251-52 (2d Cir.2005); General Trading Inc. v. Yale Materials Handling Corp., 119 F.3d 1485, 1497-98 (11th Cir.1997); Wachovia Sec., LLC v. Neuhauser, 528 F.Supp.2d 834, 858 (N.D.Ill.2007); Kreidler v. Taylor, No. 05-cv-1262-BR, 2007 WL 1560627, at *6 (D.Or. May 24, 2007); In re Foxcroft Square Co., 184 B.R. 671, 674 (E.D.Pa.1995); Mann v. Hanil Bank, 920 F.Supp. 944, 950 (E.D.Wis.1996); In re Chapman Lumber Co., Bankr. No. 05-0408, 2007 WL 2316528, at *2 (Bankr.N.D.Iowa Aug. 8, 2007) (quoting Benson v. Richardson, 537 N.W.2d 748, 756 (Iowa 1995)); In re O’Day Corp., 126 B.R. 370, 410 (Bankr.D.Mass.1991); In re Am. Way Serv. Corp., 229 B.R. 496, 530 n. 112 (Bankr.S.D.Fla.1999); Matter of Twin Lakes Village, Inc., 2 B.R. 532, 538 (Bankr.D.Nev.1980); In re Stanley, 384 B.R. 788, 798-99" }, { "docid": "13179963", "title": "", "text": "(4th Cir.1990); In re Holzinger, 89 B.R. 529, 530 (Bankr.E.D.Pa.1988); and In re Pashi, 88 B.R. 456, 457 (Bankr.N.D.Ga.1988). . In re Cantin, 114 B.R. 339, 341 (Bankr.D.Mass.1990); and In re Dempster, 59 B.R. 453, 455 (Bankr.M.D.Ga.1984). . Id. See also Mesnick, 950 F.2d at 822. . Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989). . Id. See also Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. . Id. See also In re CVEO Corp., 327 B.R. at 213. . See, e.g., Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992). . PTC v. Robert Wholey & Co. (In re Fleming Cos.), 2006 Bankr.LEXIS 896 at *3 (Bankr.D.Del.2006) (citing Matsushita Elec. Indus. Co., 106 S.Ct. at 1356). . Celotex Corp., 477 U.S. at 317, 106 S.Ct. 2548. . 11 U.S.C. § 547(b). See also Radnor Holdings Corp. v. PPT Consulting, LLC (In re Radnor Holdings Corp.), Case No. 06-10894, 2009 Bankr.LEXIS 1815, at *7-8 (Bankr.D.Del. July 9, 2009). . Id. at § 547(g). See also Radnor, 2009 Bankr.LEXIS 1815, at *8. . Waslow, 308 B.R. at 701. . 11 U.S.C. § 547(g); United States Trustee v. First Jersey Sec., Inc. (In re First Jersey Sec., Inc.), 180 F.3d 504, 512 (3d Cir.1999). . See, e.g., J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir.1990) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548); Radnor, 2009 Bankr.LEXIS 1815, at *10-11; Hassett v. Altai, Inc. (In re CIS Corp.), 214 B.R. 108, 119 (Bankr.S.D.N.Y.1997). . Section 547(c)(2) states as follows: (c) The trustee may not avoid under this section a transfer— (2) to the extent that such transfer was in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee, and such transfer was— (A) made in the ordinary course of business or financial affairs of the debtor and the transferee; or (B) made according to ordinary business terms; 11 U.S.C. § 547(c)(2). . 11 U.S.C. § 547(c)(2)(A). . In re First Jersey," }, { "docid": "10733912", "title": "", "text": "was a complete stranger to DiamondRock until the transaction that produced the discount was completed. One party cannot seek unjust enrichment from another when the parties \"simply had no dealings with each other.” Georgia Malone & Co., 19 N.Y.3d at 517-18, 950 N.Y.S.2d 333, 973 N.E.2d at 747. . Courts have differed on a debtor's standing to prosecute an equitable subordination claim. Compare, e.g., In re County of Orange, 219 B.R. 543, 557 (Bankr.C.D.Cal.1997) (concluding that a debtor has no standing), with Official Comm. of Unsecured Creditors v. Liberty Sav. Bank, FSB (In re Toy King Distribs., Inc.), 256 B.R. 1, 194 (Bankr.M.D.Fla.2000) (stating that a debtor has standing). Under section 1107(a), 11 U.S.C. § 1107(a), a debtor in possession in a chapter 11 case has the powers of a trustee and therefore has standing. 1 Robert E. Ginsberg & Robert D. Martin, Ginsberg & Martin on Bankruptcy § 10.11 [C] at 10-121 (Susan V. Kelley, ed., 2011-2 Supp.). . The decisions cited here expressing reluctance to expand state law arise under federal diversity jurisdiction. See, e.g., King, 113 F.3d at 97. But bankruptcy courts have the same predictive task where state law is concerned, see, e.g., Drown v. Perfect (In re Giaimo), 440 B.R. 761, 769 (6th Cir. BAP 2010), and federal courts in bankruptcy cases should be no less reluctant to expand state law, see Stanziale v. Pepper Hamilton LLP (In re Student Fin. Corp.), 335 B.R. 539, 550 (D.Del.2005). . The plaintiffs cite ASARCO LLC v. Americas Mining Corp., 382 B.R. 49 (S.D.Tex.2007), as holding that Delaware would recognize reverse piercing. ASARCO does hold that, see id. at 68, and so do several other non-Delaware decisions, see, e.g., In re Alper Holdings USA, Inc., 398 B.R. 736, 759 (S.D.N.Y.2008); Pereira v. Cogan, No. 00 CIV. 619 (RWS), 2001 WL 243537, at *19 (S.D.N.Y. Mar. 8, 2001); Murray v. Miner, 876 F.Supp. 512, 515-17 (S.D.N.Y.1995); Duke Energy Trading & Mktng., L.L.C. v. Enron Corp. (In re Enron Corp.), Nos. 01 B 16034 (AJG), 02-3609A, 2003 WL 1889040, at *3 (Bankr.S.D.N.Y. Apr. 17, 2003). These decisions are thinly reasoned," } ]

[ { "docid": "22761490", "title": "", "text": "the Committee regarding the impact of Harris’s alleged disability, in part on the ground that the agency lacked expert testimony on the subject, and in part because it failed to adequately “acknowledge” evidence of his disability. Id. ¶¶ 153-54. The amended complaint asserts this as a separate basis for relief. Included in the amended complaint, too, is much discussion in mitigation or denial of the actions for which Harris’s license was revoked, all of which is “not presented for re[ ]litigation” but “to illustrate an understanding] [i.e., on Harris’s part] of the past issues and to prevent [their] reoccurrence in the future ([i.e.,] rehabilitation).” Id. ¶ 63. The district court granted the defendants’ motion to dismiss the amended complaint. Harris v. Mills, 478 F.Supp.2d 544 (S.D.N.Y.2007) (“Harris III”). Harris’s motion to reconsider that decision, in part in light of his withdrawal of a claim for damages relief, was denied by endorsed order. Harris, represented by counsel, appeals. DISCUSSION I. Standard of Review We review de novo the grant of a motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 392 (2d Cir. 2008), cert. denied, — U.S. -, 129 S.Ct. 1579, 173 L.Ed.2d 675 (2009). We consider the legal sufficiency of the complaint, taking its factual allegations to be true and drawing all reasonable inferences in the plaintiffs favor. See id. In- accordance with the Supreme Court’s decision Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), we apply a “plausibility standard,” which is guided by “[t]wo working principles,” Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). First, although “a court must accept as true all of the allegations contained in a complaint,” that “tenet” “is inapplicable to legal conclusions,” and “[tjhreadbare 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" } ]

[ { "docid": "13514669", "title": "", "text": "to state a Right to Financial Privacy Act claim. Id. at 83. This appeal followed. After receiving supplemental briefing, a special panel of this court denied the Appellees’ Motion for Summary Affirmance and appointed amicus to represent Abdelfattah. Order, Abdelfattah v. Dep’t of Homeland Security, No. 12-5322 (D.C.Cir. Feb. 8, 2014). The district court exercised jurisdiction over this case pursuant to 28 U.S.C. § 1331, and we have jurisdiction to review its final order under 28 U.S.C. § 1291. We review the district court’s “dismissal of claims for want of subject matter jurisdiction under Rule 12(b)(1) or for failure to state a claim under Rule 12(b)(6)” de novo. El Paso Natural Gas Co. v. United States, 750 F.3d 863, 874 (D.C.Cir.2014) (citing Kim v. United States, 632 F.3d 713, 715 (D.C.Cir.2011)). “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 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.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “A document filed pro se is to be liberally construed, ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks omitted). Even still, a pro se complaint “must plead factual matter that permits the court to infer more than the mere possibility of misconduct.” Jones v. Horne, 634 F.3d 588, 596 (D.C.Cir.2011) (internal quotation marks omitted). II Under the Privacy Act, an agency may “maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or" }, { "docid": "20847605", "title": "", "text": "wires sent out of U.S. Bank go directly to retailers and manufacturers” and “wires received come directly from retailers without going through intermediaries.” On the basis of these allegations, Varga sued U.S. Bank. U.S. Bank moved to dismiss the amended complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted U.S. Bank’s motion. This appeal followed. II. Discussion We review de novo the grant of a motion to dismiss, accepting the well-pleaded allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. Id. In addition to the allegations in the amended complaint, we also may consider “materials that are necessarily embraced by the pleadings.” Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n. 4 (8th Cir.2003). “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 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.” Id. A. Aiding and Abetting a Breach of Fiduciary Duty Under Minnesota law, aiding and abetting the tortious conduct of another has three elements: “(1) the primary tort-feasor must commit a tort that causes an injury to the plaintiff; (2) the defendant must know that the primary tort-feasor’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, Lehman & Flom, 601 N.W.2d 179, 187 (Minn.1999). While the parties dispute whether Varga alleged a breach of fiduciary duty by Prevost, Harrold, and PBCM, we assume for purposes of this appeal that Varga has done so. Varga’s aiding-and-abetting claim nonetheless fails because he has not alleged plausibly that U.S. Bank knew that Prevost, Harrold," }, { "docid": "17412807", "title": "", "text": "rejecting Johnson’s argument for equitable tolling premised on mental incompetence. D. Fraudulent Concealment and Abuse of Process Claims The district court dismissed Johnson’s fraudulent concealment and abuse of process claims without leave to amend because Johnson’s allegations could not, as a matter of law, support claims of fraudulent concealment and abuse of process, and amendment would have been futile. Both dismissals for failure to state a claim and dismissals without leave to amend are reviewed de novo. See id.; Ctr. for Biological v. Veneman, 394 F.3d 1108, 1110 (9th Cir.2005). To survive a motion to dismiss, a complaint must contain sufficient factual mat ter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting 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.” Id. Because Johnson proceeded pro se before the district court, we must construe his complaints liberally even when evaluating it under the Iqbal standard. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.2010). Furthermore, “[l]eave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts, and should be granted more liberally to pro se plaintiffs.” McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir.2004) (internal quotation marks omitted). Abuse of Process. “To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” Booker v. Rountree, 155 Cal.App.4th 1366, 66 Cal.Rptr.3d 733, 736 (2007) (quoting Rusheen v. Cohen, 37 Cal.4th 1048, 39 Cal.Rptr.3d 516, 128 P.3d 713, 718 (2006)). “ ‘Process,’ as used in the tort of ‘abuse of process,’ has never been limited to the strict sense" }, { "docid": "23647230", "title": "", "text": "motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 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)). “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.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The plausibility standard is not a “probability requirement.” Id. “[I]t simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” supporting a plaintiffs claim for relief. See Twombly, 550 U.S. at 556, 127 S.Ct. 1955. A complaint thus need not contain “detailed factual allegations,” see Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; indeed, we have rejected the “contention that Twombly and Iqbal require the pleading of specific evidence or extra facts beyond what is needed to make [a] claim plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120-21 (2d Cir.2010). “The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a ‘sheer possibility.’ ” Braden, 588 F.3d at 594 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). Indeed, “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 (internal quotations omitted). This is so because, as the majority itself notes, “a reasonable inference need not be ‘as compelling as any opposing inference’ one might draw from the same factual allegation.” Maj. Op. at 722 n. 19 (quoting N.J. Carpenters Health Fund v. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 121 (2d Cir.2013)). We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences" }, { "docid": "5882003", "title": "", "text": "her attempt was denied by the union, whose representatives said she had no rights in any forum, including the union.” (Id.) DISCUSSION I. Legal Standards A. Motion to Dismiss Pursuant to Rule 12(b)(6) Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint for a plaintiffs failure “to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). Thus, in order “[t]o survive a motion to dismiss under [Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell All. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In assessing plausibility on a motion to dismiss pursuant to Rule 12(b)(6), the court must “assume [the] veracity” of all well-pleaded factual allegations contained in the complaint, Iqbal, 556 U.S. at 664, 129 S.Ct. 1937, and afford the plaintiff every reasonable inference, Har ris v. Mills, 512 F.3d 66, 71 (2d Cir.2009). However, allegations must consist of more than mere labels, legal conclusions, or a “formulaic recitation of the elements of a cause of action,” and bare legal conclusions are “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 (internal quotation marks and citations omitted). The facial plausibility standard is met 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. at 678, 129 S.Ct. 1937. This does not require a showing of a “probability” of misconduct, but it does demand more than “a sheer possibility that a defendant has acted unlawfully.” See id. Thus, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” dismissal is appropriate. Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.2010) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937); see also Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (noting that" }, { "docid": "16824113", "title": "", "text": "that the district court erred in three respects: in construing the nature of his cause of action and not liberally construing his pleadings; in granting the motion to dismiss as to Defendants Orman, Sirmons, and Morton based on the finding that he only alleged a violation of prison regulations; and in granting the motion to dismiss as to Defendant Williams. Aplt. Br. at 3. We have jurisdiction under 28 U.S.C. § 1291. “We review de novo the district court’s grant of a Rule 12(b)(6) motion to dismiss.” Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir.2010). We accept as toue well-pleaded factual allegations, but also consider whether “they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). A complaint does not “suffice if it tenders naked assertions devoid of further factual enhancement.” Id. at 1949 (internal alterations, citations, and quotations omitted). But dismissal is not appropriate where the complaint contains “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). Although a violation of a prison regulation is not automatically a constitutional violation, Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir.2002), Mr. Barrett nonetheless stated a valid constitutional claim even without the liberal pleading standards typically accorded to pro se litigants. In both his original and amended complaints, Mr. Barrett clearly and repeatedly couched his claim in terms of constitutional violations. 1 R. 15, 17-19, 140, 143-44. Neither the original nor the amended complaint ever mentioned a violation of prison regulations. 1 R. 10-22, 138-46. In other pleadings, Mr. Barrett provided multiple, valid case citations in support of his theory that the rejection of his incoming mail without notice, a statement of reasons, and an opportunity to be heard violated his First and Fourteenth Amendment rights. 1 R. 30, 151-52, 243-45, 297-300. Of course, even under the more stringent Twombly/Iqbal pleading standard, Mr. Barrett did not need to cite specific cases in his complaint to survive a" }, { "docid": "8180100", "title": "", "text": "that precious capital ‘L’ [in ‘Liz & Co.’] made [Macy’s] crazy.” (Id.) But the article went on to state that Lundgren, the Macy’s chief, said in an email message that there was no vengeful or ulterior motive in his decision to pull back. “It’s no secret that the Liz Claiborne brand’s sales performance has been deteriorating for several years,” he said. “Any adjustments in our orders with any vendor are solely a function of the performance of that merchandise in our stores.” (Id.) Plaintiff filed his initial complaint on April 28, 2009. Plaintiff filed his first amended complaint on April 19, 2010, and filed this second amended complaint on August 23, 2010. Defendants have since moved to dismiss. II. DISCUSSION A. Standard for Rule 12(b)(6) To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “‘enough facts to state a claim to relief that is plausible on its face.’ ” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.2010) (quoting 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). If the factual averments permit no reasonable inference stronger than the “ ‘mere possibility of misconduct,’ ” the complaint should be dismissed. Starr, 592 F.3d at 321 (quoting Iqbal, 129 S.Ct. at 1950). Thus, “[w]here 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.’ ’ ” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). In applying this standard of facial plausibility, the Court accepts all factual allegations as true, but it does not credit “mere conclusory statements” or “threadbare recitals of the elements of a cause of action.” Id. On a motion to dismiss, the Court may properly consider documents referenced in or" }, { "docid": "4766367", "title": "", "text": "there was no evidence of viewpoint discrimination. Id. at *8-11. II. We review de novo the district court’s grant of a motion to dismiss under Fed. R.Civ.P. 12(b)(6), accepting as true all well-pleaded facts in the complaint and drawing all reasonable inferences in the plaintiffs’ favor. Gargano v. Liberty Int’l Underwriters, Inc., 572 F.3d 45, 48-49 (1st Cir.2009). “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, — 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)); see also Gargano, 572 F.3d at 48-49. We also review de novo the district court’s grant of summary judgment, drawing all reasonable inferences in favor of the non-moving party while ignoring “conclu-sory allegations, improbable inferences, and unsupported speculation.” Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir.2009) (quoting Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir.2008)) (internal quotation marks omitted). For review of both summary judgment and dismissal under Rule 12(b)(6), we may affirm on any basis apparent in the record. Cook v. Gates, 528 F.3d 42, 48 (1st Cir.2008); CMI Capital Mkt. Inv., LLC v. Gonźalez-Toro, 520 F.3d 58, 65 (1st Cir.2008). Plaintiffs raise three arguments on appeal. They challenge the district court’s ruling, in its April 4, 2008, order, dismissing for lack of standing the claims of the Grimards and Victoria, the three plaintiffs added in the first amended complaint. They also challenge the district court’s ruling, in the same order, dismissing the bulk of the remaining plaintiffs’ claims under the doctrine of res judicata. Finally, they challenge the November 13, 2008, grant of summary judgment to the defendants on plaintiffs’ Free Speech Clause claim pertaining to the Town website. Plaintiffs do not challenge the court’s dismissal on collateral estoppel grounds of their claim relating to the 2006 annual report. Nor do they challenge the court’s ruling on their free association claim. A. Dismissal of the Added" }, { "docid": "22420434", "title": "", "text": "the date of the alleged assault, the plaintiffs excessive force claim against Curcione and Chawer should be dismissed.” No grievance having been filed against Williams, the claim against her also was dismissed for failure to exhaust administrative remedies. ANALYSIS I. Of the Claims Against Aikin and Hohensee In analyzing the dismissal of the complaint as against Aikin and Hohensee for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), we apply a de novo standard of review, accepting as true all of the factual allegations of the complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). The plaintiff has the responsibility to set forth in the complaint facts that state a claim that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Supreme Court teaches that 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). We have noted our obligation to construe pro se complaints liberally, even as we examine such complaints for factual allegations sufficient to meet the plausibility requirement. See Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir.2009). In our review of the sufficiency of a pro se complaint such as Hill’s, we are constrained to conduct our examination with “special solicitude,” interpreting the complaint to raise the “strongest [claims] that [it] suggest[s].” Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 475, 474 (2d Cir. 2006) (per curiam) (internal citations omitted; alteration omitted). Applying the foregoing standards, we conclude, in agreement with the District Court, that Hill has failed to set forth a claim for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. The Eighth Amendment prohibition of the infliction of “cruel and unusual punishments,” U.S. Const, amend. VIII, extends to punishments that involve “the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428" }, { "docid": "8236795", "title": "", "text": "also insufficient to support small group defamation. This appeal followed. DISCUSSION A. Standard of Review We review the grant of a motion to dismiss under Rule 12(b)(6) de novo, “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chase Grp. Alliance LLC v. City of New York Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010) (internal quotation marks omitted). “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “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.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955) (internal citation omitted). B. Applicable Legal Principles The parties agree that New York law applies to this case. In New York, “[d]efamation is ‘the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.’ ” Stepanov v. Dow Jones & Co., 120 A.D.3d 28, 987 N.Y.S.2d 37, 41 (1st Dep’t 2014) (quoting Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 665 N.E.2d 153 (1996)). To state a claim for defamation, a complaint must allege “(1) a false statement that is (2) published to a third party (3) without privilege or authorization, and that (4) causes harm, unless the statement is one of the types of publications actionable regardless of harm.” Id. at 41-42. In addition, and central to this appeal," }, { "docid": "17922735", "title": "", "text": "First Amended Complaint, arguing that the action should be dismissed, stayed, or transferred pursuant to the first-filed rule based on the earlier-filed Sharma Action, or should be dismissed for failure to state a claim pursuant to Rule 12(b)(6). (ECF No. 54.) Defendants’ motion became fully briefed on February 5, 2016. (ECF No. 64.) II. LEGAL STANDARD FOR MOTION TO DISMISS To survive a Rule 12(b)(6) motion to dismiss, “the plaintiff must provide the grounds upon which [its] claim rests through factual allegations sufficient ’to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.2010) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (same). “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. The Court does not, however, credit “mere conclusory statements” or “threadbare recitals of the elements of a cause of action.” Id. If the court can infer no more than “the mere possibility of misconduct” from the factual averments — in other words, if the well-pleaded allegations of the complaint have not “nudged claims across the line from conceivable to plausible,” dismissal is appropriate. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Starr, 592 F.3d at 321 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). On a motion to dismiss, the Court accepts as true the factual allegations in the pleadings and draws all inferences in plaintiffs’ favor. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555-57, 127 S.Ct. 1955). If a fact is susceptible" }, { "docid": "22581854", "title": "", "text": "applied an incorrect standard to grant dismissal; (2) failed to grant a default judgment against defendant Malone even though evidence showed that he evaded service of process and had actual knowledge of the lawsuit; and (3) was biased in defendants’ favor in applying an incorrect dispositive standard and construing the facts in defendants’ favor, thus violating plaintiffs’ due process rights. Although the first argument is ostensibly a challenge to the standard of review applied by the district court, it is more fairly characterized as two distinct challenges: the first to the determination that plaintiffs’ alleged injuries were due to then-status as minority shareholders of MET-CO; the second to the court’s application of the PSLRA. We start with the standard of review, and consider each contention in turn. II. Standards of Review on Appeal We review de novo the district court’s Rule 12(b)(6) dismissal. See Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir.2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — 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)). “[W]e assume the factual allegations are true and ask whether it is plausible that the plaintiff is entitled to relief.” Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir.2009). “[T]he 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.” Iqbal, 129 S.Ct. at 1949. We also review de novo the legal issue of plaintiffs’ standing to bring then-claims. See Law Co. v. Mohawk Constr. & Supply Co., 577 F.3d 1164, 1173 (10th Cir. 2009). III. Dismissal for Failure to State a Claim A. RICO Standing The district court held that plaintiffs, as METCO minority shareholders, lacked standing to bring a RICO claim" }, { "docid": "13690025", "title": "", "text": "a claim for tortious interference with contract or for tortious interference with prospective business relations. It reasoned principally that Gatt’s complaint alleged no breach of the Dealer Agreement and failed to allege facts sufficient to support a theory that PMC’s sole purpose in informing Vertex of Gatt’s bid on the Transit Authority contract was to harm Gatt. The court denied Gatt leave to replead, concluding that additional amendment of the complaint would be futile because Gatt could not “allege an injury to itself that corresponds to the rationale for finding a violation of the antitrust laws in the first place,” and because the facts pleaded in support of the common law claims were “incompatible” with Gatt’s legal theories. Gatt, 2011 WL 1044898, at *7-8 (internal quotation marks omitted). Gatt now appeals. DISCUSSION We review de novo a district court’s dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chase Grp. Alliance LLC v. City of N.Y. Dep’t of Fin., 620 F.3d 146,150 (2d Cir.2010) (internal quotation marks omitted). 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 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.” Id. The district court’s dismissal of the antitrust claims was premised principally on the shortcomings in plaintiffs § 1 allegations, and, on appeal, Gatt contends principally that the district court erred in applying a rule of reason analysis to Gatt’s antitrust claims, arguing that the bid-rigging alleged in the complaint is per se unlawful under § 1 of the Sherman Act. Denying leave to replead, the district court questioned Gatt’s antitrust" }, { "docid": "11594210", "title": "", "text": "the Amended Complaint and that, in any event, the plaintiffs’ additional arguments failed to rectify their fatally flawed market definitions. See Concord Assocs., L.P. v. Entm’t Props. Tr., No. 12-1667, 2014 WL 5643240, at *6-7 (S.D.N.Y. Nov. 3, 2014). On appeal, the plaintiffs contend that the district court erred in deciding that the Amended Complaint failed to allege a plausible relevant geographic market and that the factual allegations were insufficient to connect certain of the defendants to the alleged conspiracy. The plaintiffs also claim the district court erred in denying them leave to amend the Amended Complaint. Because we agree with the district court that the plaintiffs’ proposed market definition is inherently implausible, we find that the plaintiffs failed to allege adequate facts to state a violation of the Sherman Act. Therefore, we affirm the judgment of the district court dismissing the complaint. Analysis This court “review[s] de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir.2002). “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” meaning that there is “more than a sheer possibility that a defendant acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955). At the same time, there is no heightened pleading standard in antitrust cases, and the facts alleged are subject to Federal Rule of Civil Procedure 8(a)’s general requirement of a “short plain statement” of facts supporting a plausible claim. Todd v. Exxon Corp., 275 F.3d" }, { "docid": "7657841", "title": "", "text": "12(b)(6) de novo. Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). We accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009). Under Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Two working principles underlie this standard. “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Thus, mere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir.2011) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955); see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (“[T]he pleading standard Rule 8 announces ... demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”). “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. “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. at 678, 129 S.Ct. 1937. The complaint must offer sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although “[sjpecific facts are not necessary” to comply with Rule 8(a)(2), the complaint must “ ‘give the defendant fair notice of what the ... claim is and the grounds upon" }, { "docid": "17501801", "title": "", "text": "F.3d at 575. The facts as alleged here indicate that jurisdiction would be reasonable in this case. B. Trademark Infringement Liability 1. Standard of review To survive a motion to dismiss, a plaintiff must “plead enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A facially plausible claim is one where “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, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Where the court finds well-pleaded factual allegations, it should assume their veracity and determine whether they “plausibly give rise to an entitlement to relief.” Id. at 1950. To decide the motion to dismiss, a court may consider “any written instrument attached to [the complaint] as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint.” Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004) (internal citations omitted); see also NewMarkets Partners LLC v. Oppenheim, 638 F.Supp.2d 394, 404 (S.D.N.Y.2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” however, dismissal is appropriate. Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.2010) (quoting Iqbal, 129 S.Ct. at 1950.). Pursuant to Section 32 of the Lanham Act, “the owner of a mark registered with the Patent and Trademark Office can bring a civil action against a person alleged to have used the mark without the owner’s consent.” Tiffany, Inc. v. eBay Inc., 600 F.3d 93, 102 (2d Cir.2010) (quoting ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 145-46 (2d Cir.2007)); see also 15 U.S.C. § 1114(1)(a). Gucci offers three theories of liability to hold Defendants accountable for the infringing sales of counterfeit products by others: direct, vicarious, and contributory liability. 2. Direct and Vicarious Liability Gucci has not put forth sufficient factual allegations to support trademark infringement claims based on" }, { "docid": "7173148", "title": "", "text": "Under Rule 12(b)(6), a defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff must provide grounds upon which his claim rests through “factual allegations sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir. 2010) (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In applying this standard, the Court accepts as true all well-pled factual allegations, but does not credit “mere conclusory statements” or “[tjhreadbare recitals of the elements of a cause of action.” Id. The Court.will give “no effect to legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir.2007) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A plaintiff may plead facts alleged upon information and belief “where the facts are peculiarly within the possession and control of the defendant.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.2010). But, if the Court can infer no more than the mere possibility of misconduct from the factual averments — in other words, if the well-pled allegations of the complaint have not “nudged [plaintiffs] claims across the line from conceivable to plausible” — dismissal is appropriate. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Starr, 592 F.3d at 321 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). B. Duties of an Indenture Trustee" }, { "docid": "22896960", "title": "", "text": "assist Shomo with ADLs, to transfer him to specialized infirmary housing, or to provide recommended treatments. The district court next found that Shomo did not allege any specific acts of deliberate indifference within the three-year period prior to the filing of the complaint, i.e., after September 26, 2000. Nonetheless, the district court granted Shomo leave to amend on the ground that he might be able to allege acts occurring after September 26, 2000, by at least some of the defendants, which would bring the otherwise untimely acts within the scope of the continuing violation doctrine. The district court’s decision to grant leave to amend is consistent with the liberal pleading standard for pro se litigants. See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.1999) (per curiam). B. Adequacy of the Pleadings and Leave to Amend Although the district court found that Shomo was entitled to amend his complaint in order to state timely Eighth Amendment claims based on the continuing violation doctrine, it nonetheless dismissed those claims against several defendants, with prejudice, for failure to state a claim upon which relief can be granted. We review de novo a district court’s grant of a motion to dismiss, “accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). “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, — 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)). “[A] pro se complaint is to be read liberally,” and “should not [be] dismissed] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez, 171 F.3d at 795 (quotation marks and alterations omitted). Here, the district court properly dismissed Shomo’s claims with" }, { "docid": "15536922", "title": "", "text": "all ambiguities and draw all inferences in plaintiffs favor. See id. In reviewing a motion to dismiss' for a lack of subject matter jurisdiction pursuant to Rule. 12(b)(1), this Court must accept as. true the uncontroverted and well plead factual allegations in the complaints and draw all reasonable inferences in favor of plaintiff. Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.2014). B. Rule 12(b)(6) To survive a Rule. 12(b)(6) motion , to dismiss, “the plaintiff must provide the grounds upon which [its] claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.2010) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (same). “A claim has facial plausibility when the plaintiff pleads factual -content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. In applying that standard, the court accepts as true all well-plead factual allegations, but does not credit “mere conclusory statements” or “threadbare recitals of the elements of a cause of action.” Id. If the court can infer no more than “the mere possibility of misconduct” from the factual averments — in other words, if the well-pleaded allegations of the complaint have not “nudged claims across the line from conceivable to plausible,” dismissal is appropriate. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Starr, 592 F.3d at 321 (quoting Iqbal, 129 S.Ct. at 1950). TV. THE EXCLUSIVE FEDERAL REGULATORY SCHEME The threshold question of whether this Court has subject matter jurisdiction over Lanier’s claims depends on whether those claims have been preempted by the" }, { "docid": "14263598", "title": "", "text": "DISCUSSION I. Legal Standard On a motion to dismiss, this Court accepts all factual allegations in the complaint as true and draws all reasonable inferences in the plaintiffs favor. Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir.2008). Nonetheless, 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, - 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)). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “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.” Plumbers & Steamfitters Local 773 Pension Fund v. Canadian Imperial Bank of Commerce, 694 F.Supp.2d 287, 296 (S.D.N.Y.2010). Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.2010). In ruling on a motion to dismiss, a “court may consider the facts as asserted within the four corners of the complaint together with the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir.2010) (internal quotation and citation omitted). “Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002)" } ]

[ { "docid": "15675267", "title": "", "text": "of contract since the sale of photographs would be a sale of goods within Section 2-105. The only section of the Code applicable to the facts of this case is Section 2-715, Pa.Stat. tit. 12A (1970), which provides that the buyer of goods is entitled to both incidental and consequential damages for the seller’s breach of contract. While consequential damages are normally only available to a plaintiff when they are ascertainable to a reasonable certainty, the Code is more lenient in cases where the market value is not available as a guideline. However, “ * * * damages which are wholly speculative in amount and incapable of reasonable ascertainment are not allowed.” 2 Anderson on the Uniform Commercial Code, § 2-715:8, p. 470 (1971) (see § 2-715:9). This prohibition of wholly speculative damages is also supported by the common law of Pennsylvania which is retained by the Commercial Code as authoritative where not expressly superseded by it. Pa.Stat. tit. 12A, § 1-103 (1970). The controlling common law of Pennsylvania is Section 331 of the Restatement of Contracts (1932). “(1) Damages are recoverable for losses caused or for profits and other gains prevented by the breach only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” Cited in Keystone Diesel Engine Co., Inc. v. Irwin, 411 Pa. 222, 191 A.2d 376 (1963); Taylor v. Kaufhold, 368 Pa. 538, 546, 84 A.2d 347 (1951); Ross v. Houck, 184 Pa.Super. 448, 452, 136 A.2d 160 (1957). The question here is the amount of damages that can be established with reasonable certainty under the facts of this case. Since there is neither a market value for photographs of this kind nor a replacement value, the only arguable cost related measure of damages would be the estimated cost of restaging the wedding and taking photographs. However, the plaintiffs cite no authority for awarding damages based on the cost of restaging the wedding, and even if such authority was available by plaintiffs’ own statement they admit that the cost of doing so would not reach $10,000.00." } ]

[ { "docid": "3939692", "title": "", "text": "in the contract must be a reasonable forecast of just compensation for the harm that is caused by any breach. Second, the harm that is caused by any breach must be one that is incapable or very difficult of accurate estimation. Larson-Hegstrom & Associates, Inc. v. Jeffries, 145 Ariz. 329, 701 P.2d 587 (Ariz.App.1985). The difficulties of proof of loss are to be determined at the time the contract is made and not at the time of the breach. Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972); Leeber v. Deltona Corp., 546 A.2d 452 (Me.1988). Furthermore, the amount fixed is reasonable to the extent that it approximates the loss anticipated at the time of the making of the contract, even though it may not approximate the actual loss. Restatement (Second) of Contracts § 356, comment b (1981). However, the amount retained upon a contract’s breach will be considered a penalty if it is unreasonable. Marshall v. Patzman, 81 Ariz. 367, 306 P.2d 287 (1957). Pima Sav. and Loan Ass’n v. Rampello, 168 Ariz. 297, 300, 812 P.2d 1115, 1118 (Ariz.App.1991). And, Tennessee which also follows Restatement § 356, applies the following test: The fundamental purpose of liquidated damages is to provide a means of compensation in the event of a breach where damages would be indeterminable or otherwise difficult to prove. V.L. Nicholson [Co. v. Transcon Inv. & Fin. Ltd., Inc.], 595 S.W.2d [474] at 484 [ (Tenn.1980) ]; 22 Am.Jur.2d Damages § 683 (1988); Restatement (Second) of Contracts § 356 cmt. (1979). By stipulating in the contract to the damages that might reasonably arise from a breach, the parties essentially estimate the amount of potential damages likely to be sustained by the nonbreaching party. “If the [contract] provision is a reasonable estimate of the damages that would occur from a breach, then the provision is normally construed as an enforceable stipulation for liquidated damages.” V.L. Nicholson, 595 S.W.2d at 484 (citing City of Bristol v. Bostwick, 146 Tenn. 205, 240 S.W. 774 (1922); 22 Am.Jur. Damages § 227 (1965)). However, if the stipulated amount is unreasonable in relation to those" }, { "docid": "4769760", "title": "", "text": "§ 2-718(1) of the Uniform Commercial Code and § 356(1) of the Restatement (Second) of Contracts, 113 B.R. at 828, both of which make reference to an amount that “is reasonable in the light of the anticipated or actual loss caused” (emphasis added), the court also adopted Comment b to § 356: Two factors combine in determining whether an amount is so unreasonably large as to be a penalty. The first factor is the anticipated or actual loss caused by the breach. The amount fixed is reasonable to the extent it approximates the actual loss that has resulted ... even though it may not approximate the loss that might have been anticipated ... The amount fixed is reasonable to the extent that it approximates the loss anticipated at the time of the making of the contract even though it may not approximate the actual loss. A.J. Lane, 113 B.R. at 828 (emphasis added). Therefore, even under the A.J. Lane standard, the magnitude of the actual damages is not relevant to a determination of the reasonableness of the prepayment. The Debtor has failed to meet even the A.J. Lane test in another aspect. The greater the difficulty either of proving that loss has occurred or of establishing its amount with certainty ... the easier it is to show that the amount fixed is reasonable. A.J. Lane, 113 B.R. at 828, citing to Restatement (Second) of Contracts § 356 comment b (1981). The Debtor has not attempted to establish the loss incurred by TNE, much less its magnitude. The Debtor bases its argument solely on the relationship between the size of the charge and the balance due. That is far short of what it was required to show even by A.J. Lane. In light of the above we need not decide whether the enforceability of a pre-payment charge is subject to a federal standard or a dual state-federal standard. We note, however, that we are inclined to favor the dual state-federal standard for the following reasons: First, the federal approach line of cases was developed in cases dealing with attorneys’ fees. See," }, { "docid": "21679101", "title": "", "text": "295 (Mo.1954). To survive the first prong of the Missouri test, a contractual damages provision “must be fixed on the basis of compensation.” Diffley, 948 S.W.2d at 247. The reasonableness of the contractual damages provision is measured relative to an estimation, made at the time of contracting, of the compensation that would be required to negate the harm to the nonbreaching party in the event of breach. See Diffley, 948 S.W.2d at 246 (discussing “a reasonable forecast for the harm”); Burst, 771 S.W.2d at 90 (“[T]he damages fixed ... must not be unreasonably disproportionate to the amount of harm anticipated when the contract was made.”); Grand Bissell Towers, 657 S.W.2d at 379 (“These rules requiring some reasonable relation between the damages agreed upon and those expected to result from the breach are not rules about actual damages.”); see also Info. Sys. & Networks Corp. v. Kansas City, 147 F.3d 711, 714 (8th Cir.1998) (interpreting Missouri law to require that “[t]he validity of the liquidated damages clause must be viewed at the time the contract was executed”). In contrast, penalty clauses are impermissible because they are “designed primarily to compel performance” at the time of contracting. Wilt, 273 S.W.2d at 295; see also Diffley, 948 S.W.2d at 247; Restatement (Second) of Contracts § 356, cmt. a (1981) (noting that the “central objective behind the system of contract remedies is compensatory, not punitive,” and that liquidated damages provisions may not “disregard the principle of compensation”). For a contractual damages provision to survive the second prong of the Missouri test, it must be anticipated that the loss will be difficult to measure at the time breach is discovered; difficulty in measuring the extent of damages at the time of contracting is not sufficient. In Luna, for example, a Missouri court of appeals looked to the “determination that the amount of damages actually sustained by defendants would have been difficult to prove” in order to determine that proof of loss was difficult and that the liquidated damages clause was valid. 861 S.W.2d at 780 (emphasis added). Likewise, in Paragon Group, a Missouri court of" }, { "docid": "21679099", "title": "", "text": "enforcing seed-saving prohibitions in their licenses. VIII Finally, McFarling argues that the district court erred in holding that the 120 multiplier on the technology fee in the Technology Agreement was a valid and enforceable liquidated damages clause under Missouri law. Upon independent review, see Robert Blond Meat Co. v. Eisenberg, 273 S.W.2d 297, 299 (Mo.1954) (holding that the validity of a liquidated damages clause is a question of law and reviewing it without deference), we agree with McFarling that the liquidated damages clause in the Technology Agreement is invalid and unenforceable under Missouri law as it applies to McFarling’s breach of replanting of saved seed. A Missouri law distinguishes between liquidated damages clauses, which are valid and enforceable, and penalty clauses, which are neither. See Diffley v. Royal Papers, Inc., 948 S.W.2d 244, 246 (Mo.Ct.App.1997); Paragon Group, Inc. v. Ampleman, 878 S.W.2d 878, 880-81 (Mo.Ct.App. 1994); Burst v. R.W. Beal & Co., 771 S.W.2d 87, 90 (Mo.Ct.App.1989); Grand Bissell Towers, Inc. v. Joan Gagnon Enters., Inc., 657 S.W.2d 378, 379 (Mo.Ct. App.1983). “For a damage clause to be valid as fixing liquidated damages: (1) the amount fixed as damages must be a reasonable forecast for the harm caused by the breach; and (2) the harm must be of a kind difficult to accurately estimate.” Diffley, 948 S.W.2d at 246; see also Para gon Group, 878 S.W.2d at 881 (citing the Restatement (First) of Contracts and the Restatement (Second) of Contracts as the sources of the Missouri rule); Grand Bissell Towers, 657 S.W.2d at 379 (same). The two prongs of this conjunctive test are interrelated. “If the difficulty of proof of loss is great, considerable latitude is allowed in the approximation of anticipated or actual harm.” Luna v. Smith, 861 S.W.2d 775, 779 (Mo.Ct.App.1993) (quoting Restatement (Second) of Contracts § 356, cmt. b); see also Paragon Group, 878 S.W.2d at 881 (“Where the difficulty of [measuring] loss is great, significant latitude is allowed in setting the amount of anticipated damages.”). “The courts tend to construe such [contractual damages] stipulations, if doubtful, as punitive in nature.” Wilt v. Waterfield, 273 S.W.2d 290," }, { "docid": "3939689", "title": "", "text": "enforced. As a general rule, enforcement of such a clause will only be denied when the stipulated amount is so extravagant or disproportionate as to show fraud, mistake or oppression. The standard, however, is not furnished by plaintiffs actual loss or injury, but by the loss or injury which might reasonably have been anticipated at the time the contract was made. (Citations omitted.) In New Mexico, whether a contract provision is a valid liquidated damages clause or a penalty is a legal question for the court. Thomas v. Gavin, 15 N.M. 660, 665, 110 P. 841, 843 (1910). New Mexico has not yet formulated a specific “test” regarding whether a liquidated damages clause is enforceable. New Mexico does, however, follow the Restatement (Second) of Contracts. (“Restatement”). See, e.g., Nearburg v. Yates Petroleum Corp., 123 N.M. 526, 532, 943 P.2d 560, 566 (Ct.App.), cert. denied, 123 N.M. 446, 942 P.2d 189, 190 (1977)(citing Restatement § 856). Restatement § 356(1) provides: Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty. Comment a to Restatement § 356 provides, in part: The parties to a contract may effectively provide in advance the damages that are to be payable in the event of breach as long as the provision does not disregard the principle of compensation. The enforcement of such provisions for liquidated damages saves the time of courts, juries, parties and witnesses and reduces the expense of litigation. This is especially important if the amount in controversy is small. However, the parties to a contract are not free to provide a penalty for its breach. The central objective behind the system of contract remedies is compensatory, not punitive. Punishment of a promisor for having broken his promise has no justification on either economic or other grounds and a term providing such a penalty is unenforceable on" }, { "docid": "3939691", "title": "", "text": "grounds of public policy. Restatement § 356 cmt. a. Wisconsin, which also follows Restatement § 356, Wassenaar v. Panos, 111 Wis.2d 518, 526-27 n. 8, 331 N.W.2d 357, 362 n. 8 (1983), applies the following test: “(1) Did the parties intend to provide for damages or for a penalty? (2) Is the injury caused by the breach one that is difficult or incapable of accurate estimation at the time of contract? and (3) Are the stipulated damages a reasonable forecast of the harm caused by the breach?” Id. at 529-30, 331 N.W.2d at 363. (Footnotes omitted.) Similarly, Arizona, which also follows Restatement § 356, applies the following test: The test for whether a contract fixes a penalty or liquidated damages is whether payment is for a fixed amount or varies with the nature and extent of the breach, Miller Cattle Company v. Mattice, 38 Ariz. 180, 298 P. 640 (1931), which means that an agreement made in advance of a breach is a penalty unless both of two conditions are met. First, the amount fixed in the contract must be a reasonable forecast of just compensation for the harm that is caused by any breach. Second, the harm that is caused by any breach must be one that is incapable or very difficult of accurate estimation. Larson-Hegstrom & Associates, Inc. v. Jeffries, 145 Ariz. 329, 701 P.2d 587 (Ariz.App.1985). The difficulties of proof of loss are to be determined at the time the contract is made and not at the time of the breach. Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972); Leeber v. Deltona Corp., 546 A.2d 452 (Me.1988). Furthermore, the amount fixed is reasonable to the extent that it approximates the loss anticipated at the time of the making of the contract, even though it may not approximate the actual loss. Restatement (Second) of Contracts § 356, comment b (1981). However, the amount retained upon a contract’s breach will be considered a penalty if it is unreasonable. Marshall v. Patzman, 81 Ariz. 367, 306 P.2d 287 (1957). Pima Sav. and Loan Ass’n v. Rampello, 168 Ariz. 297, 300, 812" }, { "docid": "7813576", "title": "", "text": "N.E.2d at 268-69 (citations omitted). See also Restatement (Second) of Contracts, § 356(1) (“Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is un enforceable on the grounds of public policy as a penalty.”). Similarly, the First Circuit, citing both A-Z Servicenter and the Restatement, has identified two factors in Massachusetts for determining whether an amount fixed as liquidated damages is not so unreasonably large as to be unenforceable: First, to be reasonable the amount must approximate actual loss or loss anticipated at the time the contract was executed. Second, “[t]he greater the difficulty either of proving that loss has occurred or of establishing its amount with the requisite certainty ... the easier it is to show that the amount fixed is reasonable.” Space Master, 940 F.2d at 17-18 (quoting Restatement (Second) of Contracts, § 356 comment (b) (other citations omitted). The First Circuit recognizes that in Massachusetts “[cjonsiderable,” but “not unlimited” deference, “is given to the parties’ reasonable agreement as to the amount of liquidated damages where losses are difficult to quantify.” Id. (citations omitted). Nonetheless, the court concedes that “Massachusetts law clearly envisions a retrospective appraisal of a liquidated damages provision in certain circumstances.” Sloan, 870 F.2d at 765. Here, the parties appear to agree only that actual damages have not in fact been established, although that agreement arises from polar opposite positions. Defendants assert that PS has not been damaged at all. PS, on the other hand, claiming to have lost control over the dissemination of its trade secret, argues that its damages are incalculable, thereby necessitating application of the $10,-000 damage award for each breach. The analysis of the first factor set out in Space Master is immediately complicated by the very clause at issue. Although the parties have proceeded as if the clause is one for “liquidated damages,” that term is nowhere used in the parties’ two" }, { "docid": "3162323", "title": "", "text": "default that is disproportionate to the value of the performance promised or the injury that has actually occurred will be deemed a penalty. See Corbin on Contracts §§ 1063-1066 (1964). As the Pennsylvania Superior Court has stated, “If the amount of damages assessed is subsequently adjudged unreasonable in the light of either anticipated or actual harm, the contractual provision will be voided as a penalty: Restatement, Contracts, § 339, 12A PS § 2-718,” Unit Vending Corp. v. Tobin Enterprises, 194 Pa. Super. 470, 473, 168 A.2d 750, 751 (1961). The provision calling for payment of $76,941 cannot be justified on the basis that it was difficult to estimate the amount of actual damages on default. . Indeed, there was no default by the lessee, since it was not obliged to renew the lease. Thus, Finkle does not argue that the sum represents liquidated damages in the traditional sense of a prior estimate of future damages upon breach. Nor does Finkle contend that when it leased the property to another lessee after it refused to renew Philmont’s lease, it received less rent than it would have received had Philmont timely exercised the renewal option. Jule Finkle testified that the property was never empty, App. at 81a, and Finkle’s counsel conceded that it subsequently sold the property. App. at 83a. Finkle has not claimed that it received less from that sale because of Philmont’s actions. Therefore, Finkle has produced no evidence of actual damages in the sense generally recognized by the courts, i.e. damages suffered because Philmont did not exercise the option to renew the lease. Because Finkle has shown no such damage and has repossessed the premises, Finkle’s recovery of the sum demanded would violate the Pennsylvania rule that even upon breach of a material condition in a commercial lease a landlord must elect between repossession and actual damages or acceleration of the balance due. See, e.g., H.A. Steen Industries, Inc. v. Richer Communications, Inc., 226 Pa. Super. 219, 224-25, 314 A.2d 319, 321-22 (1973) (lessor of billboard space may not repossess and re-let space and collect rent due); Pierce v." }, { "docid": "7813575", "title": "", "text": "being a penalty depends upon the circumstances of each case. Where actual damages are difficult to ascertain and where the sum agreed upon by the parties at the time of the execution of the contract represents a reasonable estimate of the actual damages, such a contract will be enforced. But where the actual damages are easily ascertainable and the stipulated sum is unreasonably and grossly disproportionate to the real damages from a breach, or is unconscionably excessive, the court will award the aggrieved party no more than his actual damages. The words “liquidated damages and not as a penalty” ... are not decisive. If from the nature of the transaction and the attending circumstances it appears that the contract is a cloak to hide a sum of money out of proportion to and differing greatly from the actual damages ordinarily arising from a breach, then the sum named as in the case at bar is a penalty. This is true even if it may be designated in the contract as liquidated damages. A-Z Servicenter, 138 N.E.2d at 268-69 (citations omitted). See also Restatement (Second) of Contracts, § 356(1) (“Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is un enforceable on the grounds of public policy as a penalty.”). Similarly, the First Circuit, citing both A-Z Servicenter and the Restatement, has identified two factors in Massachusetts for determining whether an amount fixed as liquidated damages is not so unreasonably large as to be unenforceable: First, to be reasonable the amount must approximate actual loss or loss anticipated at the time the contract was executed. Second, “[t]he greater the difficulty either of proving that loss has occurred or of establishing its amount with the requisite certainty ... the easier it is to show that the amount fixed is reasonable.” Space Master, 940 F.2d at 17-18 (quoting Restatement (Second) of Contracts, § 356 comment" }, { "docid": "17100384", "title": "", "text": "strategic partners is the equivalent of solicitation. B. Liquidated Damages Defendants argue that the liquidated damage clause in Haines’ Nonsolicitation Agreement is not enforceable because actual damages are calculable. “[Contracting parties may provide for pre-determined liquidated damages in the event one party fails to perform, particularly in circumstances where actual damages would be difficult to estimate in advance or to prove after a breach occurs.” Pantuso Motors, Inc. v. Corestates Bank, N.A., 568 Pa. 601, 798 A.2d 1277, 1282 (2002) (quoting Restatement (Second) of Contracts § 356 (1979)). However, “[a] term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.” Id. Liquidated damages “clauses are enforceable provided, at the time the parties enter into the contract, the sum agreed to is a reasonable approximation of the expected loss rather than an unlawful penalty.” A.G. Cullen Const., Inc. v. State System of Higher Educ., 898 A.2d 1145 (Pa.Cmwlth., 2006) (emphasis added). For liquidated damages, the question ... is to be determined by the intention of the parties, drawn from the words of the whole contract, examined in the light of its subject matter and its surroundings; and that in this examination we must consider the relation which the sum stipulated bears to the extent of the injury which may be caused by the several breaches provided against, the case or difficulty of measuring a breach of damages, and such other matters as are legally or necessarily inherent in the transaction. Com. v. Musser Forests, Inc., 394 Pa. 205, 146 A.2d 714, 717 (1959) (quoting March v. Allabough, 103 Pa. 335, 341 (Pa.1883)). “[T]he question whether a sum stipulated for in a written contract is a penalty or liquidated damages is a question for the court, to be determined by the intention of the parties, examined in the light of its subject-matter and its surroundings.” Laughlin v. Baltalden, Inc., 191 Pa.Super. 611, 159 A.2d 26, 29 (1960). Defendants argue that because Plaintiffs expert was able to calculate damages attributable to one group of employees, the Kosanda Team, he should be able to calculate damages for all" }, { "docid": "3162322", "title": "", "text": "the sum of $76,491.00. The district court directed a verdict for Philmont and against Finkle on the ground that this provision constitutes a penalty that is not enforceable under Pennsylvania law. Since we are reviewing the grant of a directed verdict, our review is plenary and we apply the same standard as would the district court in passing on the motion originally. See Maggipinto v. Reichman, 607 F.2d 621, 624 n. 7 (3d Cir.1979); 9 C.Wright & A. Miller, Federal Practice & Procedure §§ 2524, 2536 (1971). Pennsylvania follows the principles set forth in the original Restatement of Contracts (1932) with regard to the non-enforcement of contractual provisions that establish penalties. See Restatement of Contracts § 339. When the parties have made a reasonable forecast as to just compensation for an injury that was difficult to estimate at the time they entered into the contract, that provision will be deemed to be one for liquidated damages, and enforceable. On the other hand, a provision that calls for payment of a sum on non-performance or on default that is disproportionate to the value of the performance promised or the injury that has actually occurred will be deemed a penalty. See Corbin on Contracts §§ 1063-1066 (1964). As the Pennsylvania Superior Court has stated, “If the amount of damages assessed is subsequently adjudged unreasonable in the light of either anticipated or actual harm, the contractual provision will be voided as a penalty: Restatement, Contracts, § 339, 12A PS § 2-718,” Unit Vending Corp. v. Tobin Enterprises, 194 Pa. Super. 470, 473, 168 A.2d 750, 751 (1961). The provision calling for payment of $76,941 cannot be justified on the basis that it was difficult to estimate the amount of actual damages on default. . Indeed, there was no default by the lessee, since it was not obliged to renew the lease. Thus, Finkle does not argue that the sum represents liquidated damages in the traditional sense of a prior estimate of future damages upon breach. Nor does Finkle contend that when it leased the property to another lessee after it refused to renew" }, { "docid": "12418886", "title": "", "text": "record in order to evaluate the validity of Noresco’s requests. XIII. Liquidated Damages A liquidated damages clause is enforceable when “the harm caused by the breach is difficult to estimate and when the amount fixed as liquidated damages is a reasonable forecast of the actual harm.” Howarth v. Feeney, 1992 WL 813502 at *3 (R.I.Super. Jan. 15, 1992) (citing Restatement (First) of Contracts § 339(1)(1932)). Under Rhode Island law, the loss resulting from delay in a construction contract is related to the value of the use of the property. Psaty & Fuhrman, Inc. v. Housing Auth. of City of Providence, 76 R.I. 87, 68 A.2d 32, 38 (1949) (upholding liquidated damages provision of $250.00 per day in contract for construction of 744 rental units). In the event actual damages cannot be reasonably established, a fair liquidated damages provision is valid. Id. To be considered reasonable, the amount specified must “approximate actual loss or loss anticipated at the time the contract was executed.” Space Master Int'l, Inc. v. City of Worcester, 940 F.2d 16, 17 (1st Cir.1991). In addition, “ ‘[t]he greater the difficulty either of proving that loss has occurred or of establishing its amount with the requisite certainty ... the easier it is to show that the amount fixed is reasonable.’ ” Id. at 17-18 (quoting Restatement (Second) of Contracts § 356 cmt b.) The purpose of a liquidated damages provision is to compensate for loss, not to exact punishment for breach. If no loss has been sustained as a result of the breach, a liquidated damages provision may amount to an unenforceable penalty. Howarth v. Feeney, 1992 WL 813502 at *3, see Restatement (Second) of Contracts § 356 cmt (e) (1981)(“If ... it is clear that no loss at all has occurred, a provision fixing a substantial sum as damages is unenforceable”); Space Master Int’l, Inc. v. City of Worcester, 940 F.2d at 18 (finding liquidated damages provision to be “unenforceable penalty because no loss had been sustained as a result of the breach”) (citing Priebe & Sons, Inc. v. United States, 332 U.S. 407, 413, 68 S.Ct." }, { "docid": "18897029", "title": "", "text": "Code, 45 Fordham L.Rev. 1349, 1349 (1977). I adopt the statement of the rule on liquidated damages which is contained in § 2-718(1) of the Uniform Commercial Code, as simplified in § 356(1) of the Restatement (Second) of Contracts. This statement of the rule has the greatest impact upon the law today, and it is the product of the most thorough and current study of the subject. U.C.C. § 2-718(1) provides: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. Section 356(1) of the Restatement states: Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty. The rule’s formulation under § 356(1) represents a redraft which was adopted in order to harmonize the Restatement with U.C.C. § 2-718(1). See Restatement (Second) of Contracts § 356 reporter’s note (1981). The Restatement’s previous version of the rule measured reasonableness only against anticipated harm, with no alternative test of actual harm. See Restatement of Contracts § 339(1) (1932). Present § 356 omits the reference contained in U.C.C. § 2-718(1) to “the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy” as already subsumed in the other language. Restatement (Second) of Contracts § 356 reporter’s note (1981). The interplay of the two factors to be taken into account in determining reasonableness is explained in comment b of § 356: [T]wo factors combine in determining whether an amount of money fixed as damages is so unreasonably large as to be a penalty. The first factor is the anticipated or actual loss caused by the breach." }, { "docid": "13411844", "title": "", "text": "punitive.” Restatement (Second) of Contracts § 356 comment (a) (1979). Thus, a liquidated damages provision is enforceable only if it “is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.” U.C.C. § 2-718(1). If the cancellation clause provides only for lawful liquidated damages, it is no more “exclusionary” than the underlying substantive agreement that it helps to enforce. But Barry argues that the cancellation clause is a “penalty” and that it therefore has no legitimate place in the substantive agreement. We shall assume for the sake of argument that Barry is correct. If so, the clause in principle might have an unjustified anticompetitive effect. It might discourage a buyer from pursuing a course of action otherwise open to him under the law of contracts, namely to breach the purchase agreement, to pay damages, and to buy from a new entrant instead. While the presence of the clause could not legally forbid this course of action — as it would be unenforceable as a penalty at law — its presence does still threaten the buyer with the lawsuit that would be needed to prove that it is unenforceable. And it is this threat, and the consequent additional deterrence to the “breach and pay damages” course of action that constitutes the “unreasonably anticompetitive” aspect of the clause. Cf. United States v. United Shoe Machinery Corp., 110 F.Supp. 295, 320, 344 (D.Mass. 1953) (lease provisions deterring early terminations are exclusionary), aff’d per cu- riam, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910 (1954). This argument, while logical, strikes us as of virtually no practical importance in this case. Even if one heroically assumed that Grinnell might have wished to breach and to buy elsewhere in 1977, 1978 or 1979, it is virtually impossible to believe that the presence of this clause could have stopped it from doing so. Given Grinnell’s size and the competence of its legal staff," }, { "docid": "18897028", "title": "", "text": "(Bankr. 9th Cir.1989); Conn. Gen. Life Ins. Co. v. Schaumberg Hotel Owner Ltd. Partnership (In re Schaumberg Hotel Owner Ltd. Partnership), 97 B.R. 943 (Bankr.N.D.Ill.1989); In re Planvest Equity Income Partners IV, 94 B.R. 644 (Bankr.D.Ariz.1988); In re Kroh Bros. Dev. Co., 88 B.R. 997 (Bankr.W.D.Mo.1988); Ferrari v. Barclays American/Business Credit, Inc. (In re Morse Tool, Inc.), 87 B.R. 745 (Bankr.D.Mass.1988); In re Skyler Ridge, 80 B.R. 500 (Bankr.C.D.Cal.1987); In re American Metals Corp., 31 B.R. 229 (Bankr.D.Kan.1983). C. Validity of These Prepayment Charges Under Rule for Liquidated Damages Provisions for liquidated damages have been subjected to judicial scrutiny for over five centuries, beginning with the exercise by courts of chancery of equity powers against penalties. Relief is afforded even when the transaction is fully voluntary and the parties have equal bargaining power. See Goetz & Scott, Liquidated Damages, Penalties and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach, 77 Colum.L.Rev. 554, 588-93 (1977); Comment, Liquidated Damages: A Comparison of the Common Law and the Uniform Commercial Code, 45 Fordham L.Rev. 1349, 1349 (1977). I adopt the statement of the rule on liquidated damages which is contained in § 2-718(1) of the Uniform Commercial Code, as simplified in § 356(1) of the Restatement (Second) of Contracts. This statement of the rule has the greatest impact upon the law today, and it is the product of the most thorough and current study of the subject. U.C.C. § 2-718(1) provides: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. Section 356(1) of the Restatement states: Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties" }, { "docid": "16934161", "title": "", "text": "3 Samuel Williston, A TREATISE ON THE Law OF CONTRACTS § 2214 (rev. ed. 1936)). Under District of Columbia law, liquidated damages clauses are valid and enforceable. See, e.g., Horn & Hardart Co. v. National Rail Passenger Corp., 848 F.2d 546, 550 (D.C.Cir.1988) (citing Vicki Bagley Realty, Inc. v. Laufer, 482 A.2d 359, 368 (D.C.1984)); Burns v. Hanover Ins. Co., 454 A.2d 325, 327 (D.C.1982). Coady, too, acknowledges that liquidated damages provisions can be legitimate, but he contends that the $400,000 amount is unenforceable on public policy grounds and because it is a penalty inasmuch as the contractual provision had no relationship to the actual damages suffered or anticipated. The authorities on which he relies, however, fail to advance his cause. The Restatement (Second) of Contracts § 356(1) states that [djamages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty. Id.; see also Davy v. Crawford, 147 F.2d 574, 575 (D.C.Cir.1945); Kingston Constructors, Inc. v. WMATA, 930 F.Supp. 651, 656 (D.D.C.1996), aff'd, 172 F.3d 919 (D.C.Cir.1998). Coady contends that where parties provide that one fixed sum be awarded as damages for any material breach, courts should “look askance at the liquidated damages provision.” He also points to the prohibition in Rule 5.6 of the D.C. Rules of Professional Conduct on a law firm “restricting] the rights of a lawyer to practice after termination of the [employment] relationship .... ” Disteict of Columbia Bae, Disteict of Columbia Rules of PRofessional Conduct § 5.6(a) (2001). Our response can be brief. First, the employment contract did not specify that all breaches triggered the liquidated damages provision; rather, only those breaches deemed “material” triggered the payment of liquidated damages. See Horton v. Horton, 254 Va. 111, 487 S.E.2d 200, 204 (1997); 15 Samuel Williston, A Treatise on the Law of Contracts § 44:55, at 231-33 (Richard A." }, { "docid": "21679100", "title": "", "text": "clause to be valid as fixing liquidated damages: (1) the amount fixed as damages must be a reasonable forecast for the harm caused by the breach; and (2) the harm must be of a kind difficult to accurately estimate.” Diffley, 948 S.W.2d at 246; see also Para gon Group, 878 S.W.2d at 881 (citing the Restatement (First) of Contracts and the Restatement (Second) of Contracts as the sources of the Missouri rule); Grand Bissell Towers, 657 S.W.2d at 379 (same). The two prongs of this conjunctive test are interrelated. “If the difficulty of proof of loss is great, considerable latitude is allowed in the approximation of anticipated or actual harm.” Luna v. Smith, 861 S.W.2d 775, 779 (Mo.Ct.App.1993) (quoting Restatement (Second) of Contracts § 356, cmt. b); see also Paragon Group, 878 S.W.2d at 881 (“Where the difficulty of [measuring] loss is great, significant latitude is allowed in setting the amount of anticipated damages.”). “The courts tend to construe such [contractual damages] stipulations, if doubtful, as punitive in nature.” Wilt v. Waterfield, 273 S.W.2d 290, 295 (Mo.1954). To survive the first prong of the Missouri test, a contractual damages provision “must be fixed on the basis of compensation.” Diffley, 948 S.W.2d at 247. The reasonableness of the contractual damages provision is measured relative to an estimation, made at the time of contracting, of the compensation that would be required to negate the harm to the nonbreaching party in the event of breach. See Diffley, 948 S.W.2d at 246 (discussing “a reasonable forecast for the harm”); Burst, 771 S.W.2d at 90 (“[T]he damages fixed ... must not be unreasonably disproportionate to the amount of harm anticipated when the contract was made.”); Grand Bissell Towers, 657 S.W.2d at 379 (“These rules requiring some reasonable relation between the damages agreed upon and those expected to result from the breach are not rules about actual damages.”); see also Info. Sys. & Networks Corp. v. Kansas City, 147 F.3d 711, 714 (8th Cir.1998) (interpreting Missouri law to require that “[t]he validity of the liquidated damages clause must be viewed at the time the contract was" }, { "docid": "13411843", "title": "", "text": "clauses stated that “quantities [mentioned in the contract] ... are considered to be minimum with pricing based accordingly. For this reason, full cancellation charges would apply if all or any portion of the requirements were cancelled or rescheduled by ITT Grinnell beyond [the contract period].” Those clauses, as the parties (and, we think, as the district court) interpreted them, would require Grinnell to pay the entire price of the yearly order (i.e. $4.3 million for 1977, $6.9 million for 1978, etc.) whether Grinnell took all, some or none of the snubbers that the order covered. The noncancellation clause thus acted as a powerful economic incentive for Grinnell to stick to its bargain; and Barry says this incentive was “too powerful” to the point where it is “exclusionary.” Of course, the parties to a contract have a right to collect damages for breach. And, they can insert a liquidated damages provision in the contract as a measure of damages. See U.C.C. § 2-718. Yet, “[t]he central objective behind the system of contract remedies is compensatory, not punitive.” Restatement (Second) of Contracts § 356 comment (a) (1979). Thus, a liquidated damages provision is enforceable only if it “is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.” U.C.C. § 2-718(1). If the cancellation clause provides only for lawful liquidated damages, it is no more “exclusionary” than the underlying substantive agreement that it helps to enforce. But Barry argues that the cancellation clause is a “penalty” and that it therefore has no legitimate place in the substantive agreement. We shall assume for the sake of argument that Barry is correct. If so, the clause in principle might have an unjustified anticompetitive effect. It might discourage a buyer from pursuing a course of action otherwise open to him under the law of contracts, namely to breach the purchase agreement, to pay damages, and to buy from a new entrant instead." }, { "docid": "16761002", "title": "", "text": "the Restatement of Contracts: Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 356(1) (1979). Two factors combine to determine whether an amount fixed as liquidated damages is not so unreasonably large as to be unenforceable. First, to be reasonable the amount must approximate actual loss or loss anticipated at the time the contract was executed. Colonial at Lynnfield, Inc. v. Sloan, 870 F.2d 761, 764 (1st Cir.1989) (citing Security Safety Corp. v. Kuznicki, 350 Mass. 157, 213 N.E.2d 866, 867 (1966); A-Z Servicenter, Inc. v. Segall, 334 Mass. 672, 138 N.E.2d 266, 268 (1956); Lynch v. Andrew, 20 Mass.App.Ct. 623, 481 N.E.2d 1383, 1386 (1985); Restatement (Second) of Contracts § 356 (1981)). Second, “[t]he greater the difficulty either of proving that loss has occurred or of establishing its amount with the requisite certainty ... the easier it is to show that the amount fixed is reasonable.” Restatement (Second) of Contracts § 356 comment b. Considerable deference is given to the parties’ reasonable agreement as to the amount of liquidated damages where losses are difficult to quantify. Lynch v. Andrew, 481 N.E.2d at 1386; Kroeger v. Stop & Shop Cos., 13 Mass.App.Ct. 310, 432 N.E.2d 566, 573 (1982). That deference, however, is not unlimited. In Colonial at Lynnfield, Inc. v. Sloan, we found that the liquidated damages provision at issue was a reasonable estimate of difficult to ascertain damages. We nonetheless found that the liquidated damages provision was an unenforceable penalty because no loss had been sustained as a result of the breach. 870 F.2d at 765. Liquidated damages must compensate for loss rather than punish for breach: “[A]n exaction of punishment for a breach which could produce no possible damage has long been deemed oppressive and unjust.” Priebe & Sons, Inc. v. United States, 332 U.S. 407, 413, 68" }, { "docid": "18897030", "title": "", "text": "of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty. The rule’s formulation under § 356(1) represents a redraft which was adopted in order to harmonize the Restatement with U.C.C. § 2-718(1). See Restatement (Second) of Contracts § 356 reporter’s note (1981). The Restatement’s previous version of the rule measured reasonableness only against anticipated harm, with no alternative test of actual harm. See Restatement of Contracts § 339(1) (1932). Present § 356 omits the reference contained in U.C.C. § 2-718(1) to “the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy” as already subsumed in the other language. Restatement (Second) of Contracts § 356 reporter’s note (1981). The interplay of the two factors to be taken into account in determining reasonableness is explained in comment b of § 356: [T]wo factors combine in determining whether an amount of money fixed as damages is so unreasonably large as to be a penalty. The first factor is the anticipated or actual loss caused by the breach. The amount fixed is reasonable to the extent that it approximates the actual loss that has resulted from the particular breach, even though it may not approximate the loss that might have been anticipated under other possible breaches ... Furthermore, the amount fixed is reasonable to the extent that it approximates the loss anticipated at the time of the making of the contract, even though it may not approximate the actual loss ... The greater the difficulty either of proving that loss has occurred or of establishing its amount with the requisite certainty (see § 351), the easier it is to show that the amount fixed is reasonable. To the extent there is uncertainty as to the harm, the estimate of the court or jury may not accord with the principle of compensation any more than does the advance estimates of the parties Restatement (Second) of Contracts § 356 comment b (1981). The first of these two factors does not support the Bank’s prepayment charge. The Bank’s prepayment charge presumes that damages will be sustained" } ]

[ { "docid": "20787526", "title": "", "text": "L.Ed.2d 52 (1956). There, the court addressed the question of whether, for purposes of § 16(b), the insider “purchased” securities when the purchase agreement was executed or when the transaction was actually closed. The purchase agreement was conditioned upon the purchaser securing a bank loan guaranteed by the seller, among others. Since the guarantee, and hence the loan, were not executed prior to closing, the Second Circuit held that the purchaser “had not incurred ‘an irrevocable liability to take and pay for the stock’ ” prior to the closing. 232 F.2d at 301 (footnote omitted). Consequently, the court held that the “purchase” occurred at the time of closing, not upon execution of the contingent purchase agreement. Portnoy makes much of Cooper’s loss of control over the transaction after the June 11 documents and the July 29 Merger Agreement were executed. Although we agree that the actual consummation of the transaction largely was beyond Cooper’s immediate control and direction, we do not find this dispositive. That one party has completed whatever steps it can take does not finalize the transaction if significant obstacles to closing remain to be faced. There was no irrevocable commitment to exchange shares until the significant conditions precedent to closing were fulfilled. Nor can we ignore Cooper’s continuing potential for speculative abuse of its insider position. Assuming the Revlon merger had collapsed, Cooper would have retained its Barnes-Hind stock and the continued potential for speculation based on insider information. The reasoning of Silverman v. Landa, 306 F.2d 422, 424 (2d Cir. 1962) is applicable to the case at bar. In Silverman, the court held that a director had not purchased and sold securities within less than six months by writing both puts and calls on the stock of his corporation, since the call options were not exercised. The court held that since call options had not been exercised within six months, the director’s beneficial ownership had not changed, i. e., his insider’s rights and obligations had not changed merely by placing the unexercised call options on the market. The court, 306 F.2d at 424, reasoned that: By" } ]

[ { "docid": "1045618", "title": "", "text": "profits of $11,-400 and prevailed on cross-motions for summary judgment. Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b), provides, inter alia, that a corporation may recover for itself the profits realized by an officer or director of a company or an owner of more than 10% of its shares from a purchase and sale of its stock within any period of less than six months. An officer or director need only hold the position at the time of purchase or sale to be a statutory insider. An owner must hold more than 10% at both the time of the purchase and sale to come within § 16(b). Section 16(b) of the Act was enacted expressly for the purpose of preventing the unfair use of information which may have been obtained by a beneficial owner, director, or officer by reason of his relationship to the issuer. Any profit realized by such insider from any purchase and sale, or any sale and purchase, of any equity security of the issuer within a six-month period can be recovered by the issuer irrespective of any intention on the part of the insider to use or benefit from inside information. Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418, 422, 92 S.Ct. 596, 599, 30 L.Ed.2d 575 (1972); Petteys v. Butler, 367 F.2d 528, 532 (8th Cir.1966), cert. denied, 385 U.S. 1006, 87 S.Ct. 712, 17 L.Ed.2d 545 (1967). Orion contends that Riseman, while both a director and 10% shareholder insider, exercised his option and “purchased” 1,000 shares of Orion stock in September of 1982 when he delivered the check for the purchase price. If their contention is correct, Riseman’s sale in November of 1982 occurred within six months of his September purchase and the company can recover the profits on the matching purchase and sales, i.e., the profits on 1,000 of the shares sold. Riseman contends that the purchase occurred on April 13, 1983, when Orion waived the condition precedent and sent him the stock certificates. If April 13th is deemed to be the date of purchase, Rise-man" }, { "docid": "20787516", "title": "", "text": "than six months. The issuer, or one suing on behalf of the issuer, may recover from the insider any profit derived from the short-swing transaction. It is uncontested that prior to Cooper’s May purchases of Barnes-Hind stock, Cooper already held more than 10% of Barnes-Hind’s stock. The critical ques tion in this case is whether there was a sale of securities within six months of the May purchases. The closing at which Cooper physically exchanged its Barnes-Hind stock for Revlon stock occurred on December 31, 1976, well beyond six months after the most recent purchase, and, consequently, beyond the scope of § 16(b)’s reach. Thus, for Portnoy to establish a short-swing profit by Cooper in violation of § 16(b), he must prove that either the June 11 Letter of Intent or the July 29 Merger Agreement constituted a “sale” of Cooper’s Barnes-Hind stock. Portnoy argues that either agreement can be interpreted as irrevocably binding Cooper to exchange its Barnes-Hind stock for Revlon stock. According to Portnoy, since Cooper pledged its stock in support of the Revlon merger, and since the conditions precedent to closing the transaction were beyond the control of Cooper and required no more actions by Cooper, this Court should hold that, for purposes of § 16(b), Cooper “sold” its Barnes-Hind stock no later than July 29, 1976, thus well within six months of the May purchases. Portnoy’s argument, however, is not supported either by the facts of this case or by the applicable case law under § 16(b). A Our inquiry is limited to whether execution of the June 11 Letter of Intent or the July 29 Merger Agreement constituted a “sale” of Cooper’s shares of Barnes-Hind within the meaning of § 16(b). The only statutory guidance as to what constitutes a “sale” of securities for purposes of § 16(b) is the general definition provided by § 3(a)(14) of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(14), which states that “[t]he terms ‘sale’ and ‘sell’ each include any contract to sell or otherwise dispose of.” Although this definition indicates that something less than final execution" }, { "docid": "23627867", "title": "", "text": "and when the merger would be consummated enabled it to maximize these gains or, at the very least, to avoid any loss. III. STATUTORY REQUIREMENTS Having disposed of the threshold question and determined that the purchase and exchange of Central shares presented opportunities for the type of speculative evil against which section 16(b) was intended to guard, we must now decide whether RKO’s transactions in Central common stock fall within the scope of the statutory provisions. Before liability can attach under 16(b) there must be (1) a purchase and (2) a sale of securities (3) by one who owns more than 10 percent of any one class of the issuer’s securities (4) within a six-month period. A. Purchase and Holding Period As to two of the four elements, there can be little dispute. Since all of the events relevant to this appeal transpired within a six-month span during the year 1967, any purchase and sale which formed a part of these events occurred within the statutory period. Similarly, by any rational definition, RKO's exchange of $7,550,082.50 in cash for Central’s common stock and convertible debentures was a “purchase” of those securities. B. Sale Whether the subsequent exchange of Central shares for Frontier shares pursuant to the merger agreement constituted a “sale” of the Central securities for purposes of section 16(b) poses a somewhat more difficult problem. RKO contends that the exchange did not fundamentally alter the nature of its holdings and therefore that it cannot fairly be characterized as a sale. Before the exchange, RKO urges, it owned a block of shares in each of the two separate companies; later, it was the owner of an equivalent block in the company remaining after the merger. This argument, in essence, urges us to invoke the “economic equivalence” test of Blau v. Lamb, supra, where wé held that the conversion of preferred stock to common stock was not a sale under 16(b) since “that which the insider [surrendered] and that which he [received were] simply different forms of the same participation in his issuer.” 363 F.2d at 523. RKO’s reliance on Blau" }, { "docid": "23627884", "title": "", "text": "of the merger, and disposed of the securities in return for cash. Under the terms of the agency’s order, RKO was required to exchange the Central securities it purchased for Frontier securities pursuant to the merger agreement. . In Blau v. Lamb, we expressly declined to follow Heli-Coil’s treatment of the “purchase and sale” issue under section 16 (b) ; we also refuse to follow the restrictive interpretation of “realization of •profits” advanced in that case. In HeliCoil, the Third Circuit was employing the “objective” approach to the applicability of section 16(b). See note 2 supra. It may well be that the narrow definition of “profits realized” was an attempt to avoid the harsh results which often follow from the “objective” approach, as opposed to this Court’s “pragmatic” approach. See Hemmer, Insider Liability for Short-Swing Profits Pursuant to Mergers and Related Transactions, 22 Yand.L.Rev. 1101 (1969). . Since the stated purpose of the statute is to prevent the unfair use of information which insiders may have obtained by reason of their relationship to the issuer, the reason for including ten percent beneficial owners within the definition of insiders must have been the determination that the owner of a quantity of stock that large is likely to be privy to such information. See 2 L. Loss, Securities Regulation 1060-61 (1961) (ten percent beneficial owner presumed to have access to inside information). . Blau v. Ogsbury, 210 F.2d 426 (2d Cir. 1954), a second case cited by RKO in support of the proposition that it cannot be deemed to have been a Central insider before its purchase of Central shares, is inapposite. In that case we were called upon to decide when a buyer actually purchased shares, not when he became a beneficial owner. . It is interesting to note, that, throughout the purchase agreement, the Central stock and debentures were characterized collectively as “the Stock.” . To support the contention that it would not have been willing to pay a premium in order to retain its legal control over Frontier in this instance, RKO points to the contractual purchase price for" }, { "docid": "1045634", "title": "", "text": "his complaint to add a pendent claim under M.G.L.A. § 93A against Orion's directors. The directors successfully moved to dismiss the pendent claim and Rise-man has not contested that dismissal on appeal. . Section 16(b) states in relevant part: For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months ... shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased .or of not repurchasing the security sold for a period exceeding six months .... This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection. 15 U.S.C. § 78p(b). The term \"such beneficial owner” refers to one who owns \"more than 10 per centum of any class of any equity security (other than an exempted security) which is registered pursuant to section 78l [§ 12] of this title.” 15 U.S.C. § 78p(a). . The parties do not dispute that the exercise of an option is a purchase within § 16(b). See, e.g., Blau v. Ogsbury, 210 F.2d 426, 427 (2d Cir.1954); Lewis v. Realty Equities Corp. of New York, 396 F.Supp. 1026, 1029 (S.D.N.Y.1975); Lewis v. Adler, 331 F.Supp. 1258, 1266 (S.D.N.Y. 1971). . The term \"unorthodox transaction” has been applied to stock conversions, exchanges pursuant to mergers and other corporate reorganizations, stock reclassifications, and dealings in options, rights, and warrants. See L. Loss, Securities Regulation 1069 (2d ed. 1961). . The flagrant betrayal of" }, { "docid": "20787514", "title": "", "text": "precedent. After the conditions were satisfied, the merger was closed and shares exchanged on December 31, 1976. At the closing, Cooper and Barnes-Hind executed a Mutual General Release of all potential claims against each other arising up to the date of the release, December 31, 1976. Cooper’s exchange of its Barnes-Hind stock for Revlon stock resulted in a profit of $1,555,000 with respect to the 88,000 shares purchased during May. On August 28,1978, Portnoy purchased a single share of Revlon stock. After requesting Revlon to sue Cooper for recovery of the alleged short-swing profits and receiving Revlon’s refusal to do so, Portnoy filed this suit on December 15, 1978 on behalf of Revlon and Revlon shareholders as successors-in-interest to Barnes-Hind. Summary judgment was entered dismissing Portnoy’s complaint on August 27, 1980. II The district court’s Memorandum Order asserts two grounds for dismissing the suit. The court held first that neither the June 11 Letter of Intent nor the July 29 Merger Agreement constituted a “sale” of stock for purposes of § 16(b). Rather, Cooper’s “sale” of stock occurred at the closing on December 31, 1976. Since Cooper’s last purchase of Barnes-Hind stock occurred in May, there was no purchase and sale within the required six month period under § 16(b). As an alternative ground for dismissal, the court held that Cooper’s exchange of stock pursuant to the defensive Revlon merger was an “unorthodox transaction” with no possibility of speculative insider abuse and, thus, was exempted from § 16(b) coverage by the Supreme Court’s holding in Kern County Land Co. v. Occidental Petroleum Corp., 411 U.S. 582, 93 S.Ct. 1736, 36 L.Ed.2d 503 (1973). We affirm the district court’s grant of summary judgment on the first ground. Consequently, we need not, and do not, reach the court’s second ground or the alternative grounds urged by Cooper. Section 16(b) of the Securities Exchange Act of 1934 prohibits a purchase and sale or sale and purchase of an issuer’s stock by officers, directors, or beneficial owners of more than 10% of any class of securities of the issuer within any period of less" }, { "docid": "20787527", "title": "", "text": "not finalize the transaction if significant obstacles to closing remain to be faced. There was no irrevocable commitment to exchange shares until the significant conditions precedent to closing were fulfilled. Nor can we ignore Cooper’s continuing potential for speculative abuse of its insider position. Assuming the Revlon merger had collapsed, Cooper would have retained its Barnes-Hind stock and the continued potential for speculation based on insider information. The reasoning of Silverman v. Landa, 306 F.2d 422, 424 (2d Cir. 1962) is applicable to the case at bar. In Silverman, the court held that a director had not purchased and sold securities within less than six months by writing both puts and calls on the stock of his corporation, since the call options were not exercised. The court held that since call options had not been exercised within six months, the director’s beneficial ownership had not changed, i. e., his insider’s rights and obligations had not changed merely by placing the unexercised call options on the market. The court, 306 F.2d at 424, reasoned that: By its nature, the option is one-sided; it fixes the obligations, but not the rights, of the issuer. Landa cannot be said to have “sold” or “purchased” Fruehauf stock; should the options lapse unexercised (and in fact the call options did so lapse), no change in his beneficial ownership of the underlying security would occur. And, most importantly, any change would occur at the pleasure of the optionee. This analysis is equally applicable to Cooper’s position at the time the Merger Agreement was executed. Although Cooper had obligated itself to support the merger and exchange its Barnes-Hind stock, Cooper did not have the right to insist that the exchange go forward without regard to the material conditions precedent to closing. Had the conditions not been fulfilled or waived by Revlon, no change in Cooper’s beneficial ownership of Barnes-Hind stock would have occurred. Finally, Portnoy contends that the Ninth Circuit’s decision in Provident Securities Co. v. Foremost-McKesson, Inc., 506 F.2d 601 (9th Cir. 1974), aff’d on other grounds, 423 U.S. 232, 96 S.Ct. 508, 46 L.Ed.2d 464" }, { "docid": "2595375", "title": "", "text": "inside information. Section seven of the agreement gave Underwriters the right to terminate the agreement prior to the time that the registration statement became effective if in its judgment there had occurred “a material unfavorable change in political, financial or economic conditions generally.” Presumably, if the price of Foremost stock had fallen substantially in response to unfavorable information that had become public between the time of execution and the time the registration statement became effective, Underwriters could have terminated the agreement. Nevertheless, the condition does not alter the posture of this case since the registration statement, as required by the agreement, became effective on the same date that the agreement was executed. We hold that for purposes of section 16(b) the sale of stock was completed on October 21, the date that the underwriting agreement was executed, and not on October 28, the date of closing. On the date of sale, therefore, Provident was the beneficial owner of 10 percent of Foremost’s stock. C. The Initial Transaction In order for section 16(b) liability to attach, however, the insider must have owned 10 percent of the issuer’s stock both at the time of the purchase and of the sale. The relevant part of the statute reads: “This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved . ” The correct construction of this language has been the basis of a number of law review commentaries, but there have only been three prior cases that have analyzed it. The first case in which a court analyzed this language was Stella v. Graham-Paige Motors Corp., 104 F.Supp. 957 (S.D.N.Y.1952), in which Judge Kaufman concluded that the language “at the time of” must be construed to mean “simultaneously with,” rather than prior to. Thus, he held that the initial purchase in which a person becomes the owner of 10 percent of the issuer’s stock is a section 16(b) transaction and that a sale within six months serves as the" }, { "docid": "6109258", "title": "", "text": "words, corporate “insiders”—within any period of less than six months. In determining the point at which the insider purchased or sold a security, courts look at the context of the transaction to determine when the insider became irrevocably bound to dispose of his or her securities. Riseman v. Orion Research, Inc., 749 F.2d 915, 918-919 (1st Cir.1984); Jammies Intern. Inc. v. Nowinski 700 F.Supp. 189, 193 (S.D.N.Y.1988). In Portnoy v. Revlon, Inc., 650 F.2d 895 (7th Cir.1981), the Seventh Circuit affirmed the district court’s determination that the point of sale for the purposes of the transaction at issue in the case was the closing date of the merger through which the insider obtained shares in a stock exchange. The Seventh Circuit found that the sale did not occur until the closing date of the merger, because the merger agreement contained significant conditions precedent that could have blocked consummation of the transaction. Id. at 900. The Court noted the fact that the insider had lost control of the transaction after a certain point, but explained: “That one party has completed whatever steps it can take does not finalize the transaction if significant obstacles to closing remain to be faced. There was no irrevocable commitment to exchange shares until the significant conditions precedent to closing were fulfilled.” Id. at 901. The reasoning in Portnoy is applicable to the instant case, as the parties’ obligation to exchange their stock was subject to the fulfillment of significant conditions under the merger agreement. So while there is no clearly controlling authority that directs that the effective date here for purposes of Section 12(a)(2) is after the shareholder vote, the persuasive authority suggests the possibility. Plaintiffs do not allege that the effective date is any later than December 29, 2000, but perhaps they should have. While I am not interested in advancing arguments that the parties themselves have not made, I am also aware that under the circumstances of this case, where developments in the clinical trial were happening at the same time as the merger process was occurring, the effective date is a vital determination." }, { "docid": "2463280", "title": "", "text": "precedent to the merger. The conditions were satisfied, the merger closed, and the shares exchanged on December 31, 1976. In his complaint, Portnoy alleged that either the Letter of Intent or the Merger Agreement constituted a § 16(b) “sale.” According to Portnoy, because Cooper pledged its stock in support of the Revlon merger, and because the conditions precedent to the closing of the merger were beyond the control of Cooper and required no action on the part of Cooper, Cooper was “irrevocably bound” to exchange its Barnes-Hind stock for Revlon stock no later than July 29, 1976. Therefore, a § 16(b) “sale” occurred no later than July 29, 1976, well within six months of Cooper’s May, 1976 purchases of Barnes-Hind stock. The Seventh Circuit held that neither the Letter of Intent nor the Merger Agreement constituted a contract to sell shares within the scope of § 16(b). In so holding, the court reasoned that a sale occurs when an insider becomes “so irrevocably bound to dispose of his securities so that his rights and obligations [become] fixed and the opportunity for speculative abuse [is] removed.” Revlon, 650 F.2d at 898. The court found that the Letter of Intent and the Merger Agreement did not irrevocably bind Cooper to exchange its Barnes-Hind stock because (1) Cooper retained the right to unilaterally dispose of its Barnes-Hind shares to unrelated third parties, continuing the potential for speculative trading by an insider, until the merger closed; and (2) the significant conditions precedent to the merger set out in the Merger Agreement were not fulfilled until December, 1976, and nonfulfillment of any of the conditions could have blocked the consummation of the merger. As in Revlon, assuming there was a secret agreement, this agreement did not constitute a “sale” by Koppers of its Cutler-Hammer shares, in the sense of an irrevocable commitment and a fixing of Kopper’s rights and obligations. Until January 2, 1979, the date the merger closed, despite the alleged secret agreement, Koppers retained the right to dispose of its Cutler-Hammer stock to unrelated third parties. Also, the significant conditions precedent to the" }, { "docid": "20787525", "title": "", "text": "one of these significant conditions could have blocked consummation of the merger. Indeed, the favorable tax ruling was not received until December 7,1976, and dissenting shareholder appraisal rights could have been exercised up until December 30, 1976. Consequently, examining Cooper’s position as of July 29, we are convinced that there was no “sale” by Cooper of its Barnes-Hind shares in the sense of an irrevocable commitment and a fixing of Cooper’s rights and obligations. The eventual exchange of shares by Cooper was dependent upon the fulfillment of several significant conditions. Moreover, throughout the period preceding the actual exchange of shares at closing, Cooper remained subject to market fluctuations and retained its speculative position as a putative Barnes-Hind insider. The execution of the Merger Agreement simply did not constitute a “sale” for purposes of § 16(b). The distinction between an agreement and actual execution of a transaction for purposes of a § 16(b) purchase was discussed in Stella v. Graham-Paige Motors Corp., 232 F.2d 299 (2d Cir.), cert. denied, 352 U.S. 831, 77 S.Ct. 46, 1 L.Ed.2d 52 (1956). There, the court addressed the question of whether, for purposes of § 16(b), the insider “purchased” securities when the purchase agreement was executed or when the transaction was actually closed. The purchase agreement was conditioned upon the purchaser securing a bank loan guaranteed by the seller, among others. Since the guarantee, and hence the loan, were not executed prior to closing, the Second Circuit held that the purchaser “had not incurred ‘an irrevocable liability to take and pay for the stock’ ” prior to the closing. 232 F.2d at 301 (footnote omitted). Consequently, the court held that the “purchase” occurred at the time of closing, not upon execution of the contingent purchase agreement. Portnoy makes much of Cooper’s loss of control over the transaction after the June 11 documents and the July 29 Merger Agreement were executed. Although we agree that the actual consummation of the transaction largely was beyond Cooper’s immediate control and direction, we do not find this dispositive. That one party has completed whatever steps it can take does" }, { "docid": "2463272", "title": "", "text": "preferred shares in order to preserve any special voting rights attached to the class of preferred stock. finally declared the Registration Statement effective on November 3, 1978. As for F.T.C. approval of the merger, the F.T.C. requested Eaton and Cutler-Hammer- to provide documents to the F.T.C., and, on October 20, 1978, Eaton made those documents available to the F.T.C. Eaton did not consider that it had the F.T.C.’s approval of the merger until December 14, 1978. III. Contentions of the Parties Colan now brings this action under § 16(b) of the Securities Exchange Act of 1934. Section 16(b) prohibits a purchase and sale or sale and purchase of an issuer’s stock by officers, directors, or beneficial owners of more than 10% of any class of securities of the issuer within any period of less than six months. Colan alleges that Koppers was an insider and profited from its purchase and sale of Cutler-Hammer stock in 1978, in violation of § 16(b). According to Colan, Koppers and Eaton entered into a secret oral agreement pursuant to which Eaton would defer the Cutler-Hammer shareholder meeting and the closing of the merger in order to shield Koppers from § 16(b) liability, and Koppers would forego the Cutler-Hammer fourth quarter dividend to its shareholders, not interfere with the merger in any way, and sell its stock to Eaton at the merger price when the closing took place. This alleged secret agreement was “effectively sealed” on August 23, 1978, the date of the Cutler-Hammer Board of Directors meeting at which the Board gave Fitzgerald the authority to set the date of the shareholders' meeting. Colan also contends that, by August 23, 1978, the merger was a “substantial certainty” because all significant conditions precedent to the merger were satisfied by that date. Koppers, on the other hand, denies the existence pf a secret agreement with Eaton to defer the date of the merger. Also, Koppers contends that, even if it had made such an agreement with Eaton, the agreement would not constitute a “sale” under § 16(b). In addition, Koppers asserts that the transaction was not" }, { "docid": "20787515", "title": "", "text": "of stock occurred at the closing on December 31, 1976. Since Cooper’s last purchase of Barnes-Hind stock occurred in May, there was no purchase and sale within the required six month period under § 16(b). As an alternative ground for dismissal, the court held that Cooper’s exchange of stock pursuant to the defensive Revlon merger was an “unorthodox transaction” with no possibility of speculative insider abuse and, thus, was exempted from § 16(b) coverage by the Supreme Court’s holding in Kern County Land Co. v. Occidental Petroleum Corp., 411 U.S. 582, 93 S.Ct. 1736, 36 L.Ed.2d 503 (1973). We affirm the district court’s grant of summary judgment on the first ground. Consequently, we need not, and do not, reach the court’s second ground or the alternative grounds urged by Cooper. Section 16(b) of the Securities Exchange Act of 1934 prohibits a purchase and sale or sale and purchase of an issuer’s stock by officers, directors, or beneficial owners of more than 10% of any class of securities of the issuer within any period of less than six months. The issuer, or one suing on behalf of the issuer, may recover from the insider any profit derived from the short-swing transaction. It is uncontested that prior to Cooper’s May purchases of Barnes-Hind stock, Cooper already held more than 10% of Barnes-Hind’s stock. The critical ques tion in this case is whether there was a sale of securities within six months of the May purchases. The closing at which Cooper physically exchanged its Barnes-Hind stock for Revlon stock occurred on December 31, 1976, well beyond six months after the most recent purchase, and, consequently, beyond the scope of § 16(b)’s reach. Thus, for Portnoy to establish a short-swing profit by Cooper in violation of § 16(b), he must prove that either the June 11 Letter of Intent or the July 29 Merger Agreement constituted a “sale” of Cooper’s Barnes-Hind stock. Portnoy argues that either agreement can be interpreted as irrevocably binding Cooper to exchange its Barnes-Hind stock for Revlon stock. According to Portnoy, since Cooper pledged its stock in support of the" }, { "docid": "15298805", "title": "", "text": "of the Securities. Thus, Defendants’ initial purchase of the Securities is not subject to liability under Section 16(b). C. DEFENDANTS’ CONVERSIONS OF PREFERRED STOCK Schaffer next argues that the Conversions represent purchases that are matchable with sales occurring within six months of the Conversions, and that consequently the profits from those transactions must be disgorged. Defendants respond that the Conversions do not represent new purchases, but instead are simply exercises of a right to convert one form of previously-acquired security, namely the Preferred Stock, into another form of security, namely the Common Stock. Because of disagreement among courts that have addressed this issue, the Court proceeds with a thorough examination of precedent, professional commentary and the history of Section 16(b) itself to explain its conclusion in the instant case. 1. Section 16(b) Generally Section 16 of the Act was enacted in order to prevent directors, officers and large stockholders of a corporation from using the confidential information they acquired through their positions to profit from public trading in the shares of that corporation. See 2 Ronald O. Mueller, Federal Securities Exchange Act of 1931 § 8.01, at 8-7 (A.A.Sommer, Jr. ed.2003). As codified under Section 16(b), such a restriction means that any officer or director of an issuer, or any beneficial owner of more than 10 percent of any class of the issuer’s equity securities that are registered under Section 12 of the Act, who sells and purchases, or purchases and sells, the issuer’s equity securities within a six-month period and profits from the transaction is subject to civil liability. See id., § 8.04, at 8-108 to 8-109. While a corporate insider could conceivably abuse confidential information over a time period of any length, Congress focused in particular on transactions in which a purchase and sale both occurred within less than six months. While not spelled out in the legislative materials, a six-month period prohibiting such transactions is logical because “[ijmproper use of inside information by corporate insiders is most likely to occur in short-term, in-and-out trading.” Blau v. Max Factor & Co., 342 F.2d 304, 308 (9th Cir.1965). Such" }, { "docid": "20787531", "title": "", "text": "Agreement in the case at bar did not irrevocably bind the parties. Cooper remained subject to market risks until the date of closing because the sale of stock was in terms of an exchange ratio rather than a fixed price as in Foremost-McKesson. More importantly, consummation of the Revlon merger was contingent upon several major conditions that were not satisfied until shortly before the closing. The requirements for closing set forth in the Merger Agreement were more than just the “usual conditions precedent to closing.” They constituted significant roadblocks that could have doomed the Revlon merger. We hold that there was no “sale” by Cooper of its Barnes-Hind shares until the closing held on December 31,1976. Consequently, there was no purchase and sale by Cooper within six months, and § 16(b) was not violated. Ill For the foregoing reasons, the judgment of the district court granting summary judgment to defendants and dismissing Portnoy’s complaint is AFFIRMED. . Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b) states: For the purpose of preventing the unfair use of information which may have been obtained by such [more than 10%] beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring" }, { "docid": "1045617", "title": "", "text": "did not deliver the stock. In November 1982, an Orion director contacted Riseman and urged him to sign the letter; Riseman refused. On November 11th and 12th, less than two months after Riseman had tendered the stock option check to Orion, he sold 4,600 shares of Orion stock at $17.00 and $18.50 per share. In March of 1983 Riseman made a large sale which reduced his holdings below 10% so that he ceased to be a § 16 “insider.” On April 13, 1983, although Riseman still had not signed the investment representation letter, Orion sent Riseman a stock certificate representing the 1,000 shares of stock for which Orion was paid the previous September. Riseman accepted the certificates. On June 7, 1983, Riseman received a letter from Orion charging him with violating § 16(b) and threatening to sue to collect his profits. Riseman immediately filed a complaint requesting a declaratory judgment that he had not purchased and sold within a six-month period so as to violate § 16(b). Orion counterclaimed for Riseman’s alleged November 1982 short-swing profits of $11,-400 and prevailed on cross-motions for summary judgment. Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b), provides, inter alia, that a corporation may recover for itself the profits realized by an officer or director of a company or an owner of more than 10% of its shares from a purchase and sale of its stock within any period of less than six months. An officer or director need only hold the position at the time of purchase or sale to be a statutory insider. An owner must hold more than 10% at both the time of the purchase and sale to come within § 16(b). Section 16(b) of the Act was enacted expressly for the purpose of preventing the unfair use of information which may have been obtained by a beneficial owner, director, or officer by reason of his relationship to the issuer. Any profit realized by such insider from any purchase and sale, or any sale and purchase, of any equity security of the issuer within a" }, { "docid": "1045627", "title": "", "text": "an acquisition was consummated by payment and the transfer of the stock, chose the latter, both because the closing transaction resembled the conventional exercise of an option and because the court sought the interpretation which provided the broadest coverage for § 16(b). Id. at 831-32. In spirit, this case is most akin to Ber-shad v. McDonough, 428 F.2d 693 (7th Cir.1970), cert. denied, 400 U.S. 992, 91 S.Ct. 458, 27 L.Ed.2d 440 (1971), wherein two persons purchased more than ten percent of the issuer’s stock and became beneficial owners or insiders. Less than six months later, the insiders entered into an agreement to sell virtually all their stock at a substantial profit. At the time of the agreement, the insiders accepted 14% of the purchase price as an option or “binder,” and delivered their stock to an escrow agent. After the six-month period had elapsed, the purchaser paid the balance and the shares were transferred. The court rejected defendants’ contentions that the sale had not occurred until the stock was transferred, stating: “the insider should not be permitted to speculate with impunity merely by varying the paper form of his transactions. The commercial substance of the transaction rather than its form must be considered, and courts should guard against sham transactions by which an insider disguises the effective transfer of stock.” Id. at 697. In Riseman’s own affidavit he claims that the purpose of giving the $7,100 check to Orion on the last day of his directorship was to preserve his ability to get the stock which the option agreement plainly stated terminated when he ceased to be a director. Essentially, by paying the purchase price, Riseman sought to make Orion’s obligation to deliver the shares irrevocable. We think it plain he could not do so while at the same time postponing his “purchase” date by deliberately refusing to comply with the terms of the option. Opportunity for Speculation “Our inquiry, however, does not end here. The transaction also must be examined to determine if there was potential for speculative abuse.” Champion Home Builders v. Jeffress, 490 F.2d at 617." }, { "docid": "6153155", "title": "", "text": "16 of the Securities Exchange Act is intended “to curb short-swing trading by insiders whose position gives them access to information not available to the investing public.” Kern County Land Co. v. Occidental Petroleum Corp., 411 U.S. 582, 592 n. 23, 93 S.Ct. 1736, 1743 n. 28, 36 L.Ed.2d 503 (1973). Section 16(b) permits a shareholder or corporation to maintain an action against any director, officer or beneficial owner of more than 10% of any class of outstanding shares (a “statutory insider”) who profits from short-swing transactions in that corporation’s securities. 15 U.S.C. § 78p(b). A short-swing transaction is “any purchase and sale, or any sale and purchase, of any equity security of such issuer ... within any period of less than six months.” Id. A suit to recover such profits may be brought “by the issuer, or by the owner of any security of the issuer ... in behalf of the issuer ...; but no such suit shall be brought more than two years after the date such profit was realized.” Id. (emphasis added). Section 16(a) provides a mechanism for facilitating the recovery of short-swing profits by requiring statutory insiders to disclose any change in ownership “within ten days after the close of each calendar month” in which such change occurs. Id. § 78p(a). That disclosure is made via a Form 4 (filed with the Commission and made publicly available, see 17 C.F.R. § 240.16a-3(a) (1995)) which sets forth the insider’s name, the date of the transaction, the number of shares sold or bought and the price per share. See Ownership Reports and Trading by Officers, Directors and Principal Security Holders, 56 Fed.Reg. 7242, 7278-81 (Feb. 21, 1991) (instructions for Form 4). Where the requirements of section 16(a) are met, the corporation or shareholder may determine easily and quickly whether any statutory insider has profited from a short-swing transaction by examining the Form 4s filed each month with the Commission. The corporation or shareholder may then use the Form 4s to establish liability in an action under section 16(b). Because the “statute imposes liability without fault within its narrowly" }, { "docid": "6109257", "title": "", "text": "the parties to the transaction are committed to one another. Radiation Dynamics, 464 F.2d at 891. Judge Pollack further instructed that: “ ‘Commitment’ is a simple and direct way of designating the point at which, in the classical contractual sense, there was a meeting of the minds of the parties; it marks the point at which the parties obligated themselves to perform what they had agreed to perform even if the formal performance of their agreement is to be after a lapse of time.... ” Id. at 891. This analysis is also consistent with the approach used in the context of claims brought under Section 16(b) of the Securities Exchange Act of 1934. 15 U.S.C. § 78p(b). The definition of “purchase and sale” used by Courts in analyzing claims under Section 16(b) is substantially similar to the definition under Section 10(b). Section 16(b) prohibits a purchase and sale or sale and purchase of an issuer’s stock by officers, directors, or beneficial owners of more than 10% of any class of securities of the issuer—in other words, corporate “insiders”—within any period of less than six months. In determining the point at which the insider purchased or sold a security, courts look at the context of the transaction to determine when the insider became irrevocably bound to dispose of his or her securities. Riseman v. Orion Research, Inc., 749 F.2d 915, 918-919 (1st Cir.1984); Jammies Intern. Inc. v. Nowinski 700 F.Supp. 189, 193 (S.D.N.Y.1988). In Portnoy v. Revlon, Inc., 650 F.2d 895 (7th Cir.1981), the Seventh Circuit affirmed the district court’s determination that the point of sale for the purposes of the transaction at issue in the case was the closing date of the merger through which the insider obtained shares in a stock exchange. The Seventh Circuit found that the sale did not occur until the closing date of the merger, because the merger agreement contained significant conditions precedent that could have blocked consummation of the transaction. Id. at 900. The Court noted the fact that the insider had lost control of the transaction after a certain point, but explained: “That" }, { "docid": "1045626", "title": "", "text": "Builders v. Jeffress, 490 F.2d at 619 (Good faith can be relevant to classifying a transaction as a purchase or sale within the scope of § 16(b).). In Portnoy v. Revlon, 650 F.2d 895 (7th Cir.1981), the court found that neither a “letter of intent” nor an agreement constituted a purchase under § 16(b) where a merger agreement contained five conditions precedent including such items as a favorable IRS ruling, an opinion from a specific accounting firm that the merger would be treated as a “pooling of interests,” and consummation of several employment agreements. The conditions precedent were in the control of third parties, and were performed before consideration was given. As in Stella, the Portnoy court interpreted the prepurchase agreements to commit the purchaser and seller to proceed in good faith. Id. at 899. The court in Lewis v. Realty Equities Corp. of New York, 373 F.Supp. 829 (S.D.N.Y.1974), when faced with a choice between a purchase date that corresponded to the fulfillment of a condition precedent or a subsequent closing date at which an acquisition was consummated by payment and the transfer of the stock, chose the latter, both because the closing transaction resembled the conventional exercise of an option and because the court sought the interpretation which provided the broadest coverage for § 16(b). Id. at 831-32. In spirit, this case is most akin to Ber-shad v. McDonough, 428 F.2d 693 (7th Cir.1970), cert. denied, 400 U.S. 992, 91 S.Ct. 458, 27 L.Ed.2d 440 (1971), wherein two persons purchased more than ten percent of the issuer’s stock and became beneficial owners or insiders. Less than six months later, the insiders entered into an agreement to sell virtually all their stock at a substantial profit. At the time of the agreement, the insiders accepted 14% of the purchase price as an option or “binder,” and delivered their stock to an escrow agent. After the six-month period had elapsed, the purchaser paid the balance and the shares were transferred. The court rejected defendants’ contentions that the sale had not occurred until the stock was transferred, stating: “the insider should" } ]

[ { "docid": "4451058", "title": "", "text": "debtor submits that if the creditors proceed with collection for amounts owed it will be irreparably harmed because a collection, for example, by the New York State Department of Taxation and Finance “would effectively ... put [debtor] out of business[.]” App., ¶ 4. See also Skudin Aff d, ¶ 10 (“To permit collection and enforcement actions against the Debtor would, in essence, force the Debtor to close its business, layoff its workers, and create a void in the community of a necessary and desired food establishment.”). The debtor, therefore, seeks for a second time, “an Order enjoining and restraining the creditors of the debtor from pursuing any collection activities against the debtor[.]” App. at 5. DISCUSSION Bankruptcy Rule 8005 gives a district court the authority to order relief pending appeal from a decision of a bankruptcy court. Permitting the injunctive relief is left to the discretion of the district court. In re Overmyer, 53 B.R. 952, 955 (Bankr.S.D.N.Y.1985) (“A motion for a stay pending appeal, as authorized under Bankruptcy Rule 8005, is discretionary.”); In re Neisner Bros., Inc., 10 B.R. 299, 300 (Bankr.S.D.N.Y.1981) (same). “In order to obtain a stay from a Bankruptcy Court order the appellant must make the same showing normally required for a preliminary injunction or stays of other kinds of orders.” In re Hi-Toc Development Corp., 159 B.R. 691, 692 (S.D.N.Y.1993). Therefore, in order for debtor to receive the injunctive relief requested, he must satisfy this court that (1) there is a likelihood of success on the merits; (2) he will be irreparably injured absent a stay; (3) the issuance of a stay will not substantially injure the other parties interested in the proceeding; and (4) the granting of the relief sought is not contrary to public policy. Id.; In re Cretella, 47 B.R. 382, 383-84 (E.D.N.Y.1984). A. Likelihood of Success on the Merits Judge Holland did not state the statutory grounds upon which he dismissed debtor’s Chapter 11 case. His factual findings were as follows: (i) debtor failed to appear at a duly noticed court status conference; (ii) debtor failed to timely file operating reports" } ]

[ { "docid": "13890061", "title": "", "text": "Farms, Inc., 34 B.R. 435 (Bankr.D.Vt.1983) (absent order staying dismissal of Chapter 11 case, automatic stay terminated upon dismissal of case and mortgagee could proceed with foreclosure action notwithstanding debtor’s appeal of dismissal order). Thus, he moves here as a “party in interest” under FRBP 8005 to stay the foreclosure sale by Rome. We note the critical role a stay pending appeal plays, not only in maintaining the status quo, but in preserving the right to a review on the merits. The stay pending appeal sought in this matter, nevertheless, is discretionary. In re Rhoten, 31 B.R. 572, 577 (M.D.Tenn.1982); In re Neisner Bros., Inc., 10 B.R. 299 (Bankr.S.D.N.Y. 1981). To obtain such relief under FRBP 8005 the movant must establish the following: (1) a strong likelihood of success on the merits of the appeal; (2) whether the movant will suffer irreparable injury if the stay is denied; (3) Whether substantial harm will be suffered by other parties if the stay is granted; and, (4) the harm to the public interest, if implicated. Sandra Cotton, Inc. v. Bank of New York, 64 B.R. 262 (W.D.N.Y.1986); In re The Charter Co., 72 B.R. 70 (Bankr.M.D.Fla. 1987); In re Smoldt, 68 B.R. 533 (Bankr.N.D.Iowa 1986); In re VVF Communications Corp., 41 B.R. 546 (Bankr.D.C.1984); In re Candor Diamond Corp., 26 B.R. 844 (Bankr.S.D.N.Y.1983); In re East Redley Corp., 20 B.R. 612 (Bankr.E.D.Pa.1982); In re Tolco Properties, Inc., 6 B.R. 490 (Bankr.E.D.Va.1980); In re Parr, 1 B.R. 453 (Bankr.E.D.N.Y.1979). All four criteria must be satisfied by the movant before relief under FRBP 8005 can be granted. In re The Charter Co., 72 B.R. at 71; In re VVF Communications Corp., 41 B.R. at 550; In re Candor Diamond Corp., 26 B.R. at 847. Movant must show “satisfac tory” evidence on all four criteria. In re Smoldt, 68 B.R. at 535. Here, movant failed to offer any proof in support of the four criteria, other than by his “Affidavit as to Immediate and Irreparable Inquiry [sic]” filed in support of his motion. As to the first, the likelihood of success on the merits, we" }, { "docid": "5494905", "title": "", "text": "the merits of the appeal; (2) that the movant will suffer irreparable injury if the stay is denied; (3) that substantial harm will not be suffered by other parties if the stay is granted; and (4) that issuance of the stay would not involve harm to the public interest. In re Charles & Lillian Brown’s Hotel, Inc., 93 B.R. 49, 53 (Bankr.S.D.N.Y.1988); In re Liggett, 118 B.R. 219, 221 (Bankr.S.D.N.Y.1990); In re Fosko Markets, 74 B.R. 384, 390 (Bankr.S.D.N.Y.1987). To prevail, the debtor must satisfy all four requirements before the stay will be granted. In re Friedberg, 1991 WL 259038 (S.D.N.Y.1991); In re Charles & Lillian Brown’s Hotel, Inc., supra at 53. Section 541 of the Bankruptcy Code vests the estate with the debtor’s legal and equitable interests in property as of the commencement of the case. Congress has generally left the determination of property rights in the assets of a bankrupt’s estate to state law. Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 917, 59 L.Ed.2d 136 (1979). Although a stipulation is a contract, Kleinberg v. Ambassador Associates, 103 A.D.2d 347, 480 N.Y.S.2d 210 (1st Dep’t 1984), aff'd 64 N.Y.2d 733, 485 N.Y.S.2d 748, 475 N.E.2d 119 (1984) the stipulation here was not sufficient, alone, to embody the full relationship between these parties. A lease is a contract by which the landlord tenant relationship is created. If a contract confers exclusive possession of the premises or a portion thereof as against the whole world for an agreed rental, it is a lease. Slutzky v. Cuomo, 114 A.D.2d 116, 498 N.Y.S.2d 550 (3rd Dep’t 1986), appeal dismissed 68 N.Y.2d 663, 505 N.Y.S.2d 1027, 496 N.E.2d 240 (1986); Rochester Poster Advertising Co. v. State, 27 Misc.2d 99, 213 N.Y.S.2d 812, 815 (1961), aff'd 15 A.D.2d 632, 222 N.Y.S.2d 688 (4th Dep’t 1961), aff'd 11 N.Y.2d 1036, 230 N.Y.S.2d 30, 183 N.E.2d 911 (1962). The stipulations have no life separate and apart from the original lease. Indeed, the first stipulation refers to the lease several times and expressly incorporates a number of its provisions. Moreover, section 365(m) of the" }, { "docid": "1819779", "title": "", "text": "actions. The Defendants seek a stay of enforcement of the judgment. Conclusions of Law on Motions for Stay Pending Appeal. A motion for stay pending appeal is an extraordinary remedy and requires a substantial showing on the part of the movant. In re Running, 1990 WL 53063 (N.D.Ill.). F.R.B.P. 8005 provides that the movant must first seek such relief in the bankruptcy court. In determining a motion for stay pending appeal, the court must consider four factors. “These factors are (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981). See also In re Brown, 290 B.R. 415, 424 (Bankr.M.D.Fla.2003); In re Bilzerian, 264 B.R. 726, 729 (Bankr.M.D.Fla.2001). The movant must show “satisfactory evidence on all four criteria, and the failure to satisfy one prong is fatal to the motion.” Brown, 290 B.R. at 424. The movant bears the burden of persuasion by a preponderance of the evidence. Rossi, McCreery & Assoc., Inc. v. Abbo (In re Abbo), 191 B.R. 680, 682 (Bankr.N.D.Ohio 1996). A. Likelihood of Success on the Merits. A showing that the movant has a likelihood of success on the merits is a prerequisite to the granting of a stay pending appeal. In re Permian Producers Drilling, Inc., 263 B.R. 510, 515 (W.D.Tex.2000). A “likelihood of success is shown when the [movant] has raised ‘questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry.’ ” Colorado Public Utilities Comm. v. Yellow Cab Cooperative Ass’n (In re Yellow Cab Cooperative Ass’n), 192 B.R. 555, 557 (D.Co.1996), quoting United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enterprise Management Consultants, Inc., 883 F.2d 886, 889 (10th Cir.1989). The Defendants have raised eight issues on appeal" }, { "docid": "16479928", "title": "", "text": "appeal. This refusal had the effect of denying an injunction by denying the Claimants’ request to enjoin a substantial distribution from the Trust balance while proceedings concerning rights to that balance continued. If the proposed interim distribution from the Trust is not stayed, and if the Claimants are ultimately successful in proving their claims allowable under the Plan, the balance of Trust Account A will be so depleted that the Claimants’ will have little hope of receiving the same payment as other initially allowed present claimants. This possibility provides the necessary risk of serious consequence required under Carson, and thus we take jurisdiction under § 1292(a)(1). III. Merits of the Stay Having asserted jurisdiction, we now examine the propriety of the district court’s September 26,1996 order denying the Claimants’ stay motion. In considering whether to grant a stay pending appeal under Bankruptcy Rule 8005, courts consider the following four factors: 1) whether the appellant is likely to succeed on the merits of the appeal; 2) whether the appellant will suffer irreparable injury absent a stay; 3) whether a stay would substantially harm other parties in the litigation; and 4) whether a stay is in the public interest. In re 203 North LaSalle Street Partnership, 190 B.R. 595, 596 (N.D.Ill.1995); In re Maurice, 167 B.R. at 138. These factors mirror the factors to be considered in ruling on an application for preliminary injunction, in which context we have more fully explained how the factors are to be applied and balanced. See Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380 (7th Cir.1984). Applicants for preliminary relief have threshold burdens to demonstrate the first two factors: they must show that they have some likelihood of success on the merits and that they will suffer irreparable harm if the requested relief is denied. Id. at 386-87. If the movant can make these threshold showings, the court then moves on to balance the relative harms considering all four factors using a “sliding scale” approach. Id. However, if the movant does not make the requisite showings on either of these two factors, the court’s" }, { "docid": "6753885", "title": "", "text": "an emergency motion for a stay pending appeal to this panel. Discussion This panel has read the recent decision of the Court of Appeals for the Second Circuit which cautioned lower appellate courts, after denying a stay pending appeal of a judicially authorized sale, not to lightly deny a party’s motion for a brief stay to permit it to seek a stay pending appeal from a higher court because “a closing occurring immediately after a stay is denied will substantially limit the scope of an appeal.” Licensing by Paolo, Inc. v. Sinatra (In re Gucci), 105 F.3d 837, 839-40 (2d Cir.1997). As the Court described in that case, denying even a one-day stay may result in the party’s loss of its opportunity to raise meritorious arguments in challenging a sale. However, the Court also noted that because there are occasions where substantial reasons exist for closing a sale promptly and assuring a good faith buyer that the sale cannot be undone, a stay should not be routinely given, even if it were to be a brief one. Id. Bankruptcy Rule 8005 provides in pertinent part that “a motion for a [stay of the order of a bankruptcy judge] ... may be made to the ... bankruptcy appellate pan-el____” In Hirschfeld v. Board of Elections, 984 F.2d 35, 39 (2d Cir.1992), the Court of Appeals established a four part test for determining whether to grant a motion for stay pending appeal: “(1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a ‘substantial possibility, although less than a likelihood, of success’ on appeal, and (4) the public interests that may be affected.” As the moving party, the Appellants must show “ ‘satisfactory’ evidence on all four criteria.” Bijan-Sara Corp. v. Federal Deposit Ins. Corp. (In re Bijan-Sara Corp.), 203 B.R. 358, 360 (2d Cir. BAP 1996) (quoting In re Charles & Lillian Brown’s Hotel, Inc., 93 B.R. 49, 53 (Bankr.S.D.N.Y.1988)). Failure to satisfy one prong of this standard for granting a" }, { "docid": "13890060", "title": "", "text": "rights of all parties in interest. FRBP 7062 makes FRCP 62 applicable to the stay of proceedings to enforce a judgment, but states that an order granting relief from the automatic stay provided by Code § 362 is an additional exception to FRCP 62(a). In general, a stay is “available as of right, subject only to the condition that a satisfactory bond be filed.” 9 Moore’s Federal Practice if 208.02 at 8-5 (2d ed. 1988). FRCP 62(a), however, lists certain exceptions to this as-of-right stay. Therefore, pursuant to FRCP 62(c), made applicable by FRBP 7062, the granting of a stay of an order permitting relief from the automatic stay is discretionary. The Trustee is no doubt cognizant that an appellee is “fully within its legal rights in disposing of property pursuant to a court order,” unless there is a stay of the order pending appeal. Grippando, Circuit Court Review of Orders on Stays Pending Bankruptcy Appeals to US. District Courts or Appellate Panels, 62 Am.Bankr. L.J. 353, 353 n. 3 (1988); e.g., In re Weath-ersfield Farms, Inc., 34 B.R. 435 (Bankr.D.Vt.1983) (absent order staying dismissal of Chapter 11 case, automatic stay terminated upon dismissal of case and mortgagee could proceed with foreclosure action notwithstanding debtor’s appeal of dismissal order). Thus, he moves here as a “party in interest” under FRBP 8005 to stay the foreclosure sale by Rome. We note the critical role a stay pending appeal plays, not only in maintaining the status quo, but in preserving the right to a review on the merits. The stay pending appeal sought in this matter, nevertheless, is discretionary. In re Rhoten, 31 B.R. 572, 577 (M.D.Tenn.1982); In re Neisner Bros., Inc., 10 B.R. 299 (Bankr.S.D.N.Y. 1981). To obtain such relief under FRBP 8005 the movant must establish the following: (1) a strong likelihood of success on the merits of the appeal; (2) whether the movant will suffer irreparable injury if the stay is denied; (3) Whether substantial harm will be suffered by other parties if the stay is granted; and, (4) the harm to the public interest, if implicated. Sandra Cotton," }, { "docid": "17576757", "title": "", "text": "The district court ... may condition the relief it grants under this rule on the filing of a bond or other appropriate security with the bankruptcy court. The decision as to whether or not to grant a stay of an order pending appeal lies within the sound discretion of the court. See, e.g., In re Overmyer, 53 B.R. 952, 955 (Bankr.S.D.N.Y.1985) (“A motion for a stay pending appeal, as authorized under Bankruptcy Rule 8005, is discretionary.”). Though the factors that must have to be satisfied have been stated in slightly different ways, and sometimes in a different order, it is established that to get a stay pending appeal under Rule 8005, a litigant must demonstrate that: (1) it would suffer irreparable injury if a stay were denied; (2) there is a substantial possibility, although less than a likelihood, of success on the merits of movant’s appeal; (3) other parties would suffer no substantial injury if the stay were granted; and that (4) the public interest favors a stay. See, e.g., Hirschfeld, v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir.1992); In re DJK Residential, LLC, 2008 WL 650389 (S.D.N.Y. Mar.7, 2008) (Lynch, J.); In re WestPoint Stevens, Inc., No. 06 Civ. 4128, 2007 WL 1346616, at *4 (S.D.N.Y. May 9, 2007) (Swain, J.). The burden on the movant is a “heavy” one. See, e.g., DJK, 2008 WL 650389 at *2; see also United States v. Private Sanitation Indus. Ass’n of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir.1995). To be successful, the party must “show satisfactory evidence on all four criteria.” In re Turner, 207 B.R. 373, 375 (2d Cir. BAP 1997) (citations and internal quotation marks omitted). Moreover, if the movant “seeks the imposition of a stay without a bond, the applicant has the burden of demonstrating why the court should deviate from the ordinary full security requirement.” DJK, 2008 WL 650389 at *2; WestPoint Stevens, 2007 WL 1346616, at *4. While, as Judge Lynch noted in DJK the 2d Circuit BAP has held that failure to satisfy any prong of the 4-part test “will doom the motion,”" }, { "docid": "13836733", "title": "", "text": "Trade, Inc. v. Govt. of Israel, 670 F.2d 8 (2d Cir.1982). A uniform judicial standard for the grant of a stay pending appeal pursuant to Rule 8005 is unsettled. Two views are predominant. Some courts adhere to a “judicial discretion” standard in determining the issuance of a stay, (In re Markman, 41 F.Supp. 95, 97 (S.D.N.Y.1941); American Training Svcs., Inc. v. V.A., 434 F.Supp. 988, 990 (D.N.J.1977)), while other courts have applied the standards applied to the issuance of preliminary injunctions. In re Candor Diamond Corp., 26 B.R. 844, 847 (Bankr.S.D.N.Y.1983); In re Hotel Assoc., Inc., 6 B.C.D. 1323, 7 B.R. 130, 131-32 (Bankr.E.D.Pa.1980). At bar, the ORSC seeks a stay of designation and distribution of proceeds. This relief is being sought in view of an earlier confirmed sale. As such, the relief sought is primarily injunctive in nature and, accordingly, the standard used in issuing preliminary injunctions will be considered herein. Under the preliminary injunction standard, the issuance of a stay pending appeal is appropriate only where the following factors are established. 1. A likelihood that the party seeking the stay will prevail on the merits of the appeal; 2. The movant will suffer irreparable injury unless the stay is granted; 3. Other parties will suffer no substantial harm if the stay is granted; 4. The public interest will not be harmed if the stay is granted. In view of these standards, the burden of proof is upon the party seeking the stay to establish each of these factors. That burden must be shown by a preponderance of the evidence. In re Hamilton, 95 B.R. 564, 565 (N.D.Ill.1989). The above factors considered for the granting of a stay pending an appeal must be considered further in view of § 363 of the Bankruptcy Code. [11 U.S.C. 363]. Section 363 of the Code concerns to the use, sell, or lease of estate property. Under subsection 363(b)(1), a trustee, after notice and a hearing, may use, sell, or lease property of the estate, other than in the ordinary course of business. Additionally, the following provisions of § 363(h) and (m) have" }, { "docid": "5494904", "title": "", "text": "that the relationship, governed solely by the terms of the first stipulation, as amended by the stipulation of October 29, was an executory contract for possession of the premises, which could be assumed. The landlord argued that the stipulation was entered into as part of the final judgment, and that the issuance of a warrant annulled the landlord and tenant relationship. Although under state law a tenant normally retains an equitable interest in the property after issuance of the warrant to the extent that it could potentially have the warrant vacated for good cause, the landlord maintained that such an interest is not assumable in bankruptcy, which the debtor did not dispute. Here, however, even that possibility of vacatur of the warrant had been exhausted when the State court denied that very relief. The debtor now moves for a stay pending appeal pursuant to Rule 8005 of the Federal Rules of Bankruptcy Procedure. In order to obtain a stay pending appeal under Rule 8005, the movant must establish (1) a strong likelihood of success on the merits of the appeal; (2) that the movant will suffer irreparable injury if the stay is denied; (3) that substantial harm will not be suffered by other parties if the stay is granted; and (4) that issuance of the stay would not involve harm to the public interest. In re Charles & Lillian Brown’s Hotel, Inc., 93 B.R. 49, 53 (Bankr.S.D.N.Y.1988); In re Liggett, 118 B.R. 219, 221 (Bankr.S.D.N.Y.1990); In re Fosko Markets, 74 B.R. 384, 390 (Bankr.S.D.N.Y.1987). To prevail, the debtor must satisfy all four requirements before the stay will be granted. In re Friedberg, 1991 WL 259038 (S.D.N.Y.1991); In re Charles & Lillian Brown’s Hotel, Inc., supra at 53. Section 541 of the Bankruptcy Code vests the estate with the debtor’s legal and equitable interests in property as of the commencement of the case. Congress has generally left the determination of property rights in the assets of a bankrupt’s estate to state law. Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 917, 59 L.Ed.2d 136 (1979). Although a stipulation" }, { "docid": "1092740", "title": "", "text": "of Beneficial’s motion for a stay, the court must first determine whether Beneficial has satisfied Rule 8005’s procedural threshold, to wit presentation of this application to the bankruptcy court or a tenable explanation for why this application is not before the bankruptcy court. See Rule 8005; In re Petrusch, 14 B.R. 825, 826 n. 1 (N.D.N.Y.) (McCurn, J.), aff'd, 667 F.2d 297 (2d Cir.1981), cert. denied, 456 U.S. 974, 102 S.Ct. 2238, 72 L.Ed.2d 848 (1982); In re Drislor Assoc., 110 B.R. 937, 939 (D.Colo.1990). Beneficial has satisfied this requirement. In his affidavit in support of Beneficial’s motion for a stay pending appeal, Beneficial’s counsel averred that “Judge Mahoney has specifically stated that he will not stay his own Orders_” Fisher Aff. ¶ 12. In so attesting, Beneficial has satisfactorily shown why it has not sought a stay in bankruptcy court. Judge Maho-ney’s apparent blanket policy against staying his own orders would render futile an attempt to seek a stay in that court, and thus justifies Beneficial’s motion in this court for a stay pending appeal. Rule 8005 is itself of no assistance in terms of lending guidance as to when a stay is appropriate. Fortunately, courts interpreting the rule have set forth uniform standards applicable to motions for stays. In considering whether to grant a stay, this court must balance the following four factors: 1. whether Beneficial is likely to succeed on the merits of its appeal; 2. whether Beneficial will suffer irreparable harm if the stay is denied; 3. whether the harm which Beneficial would suffer as a result of no stay outweighs the potential injury to the Moreaus if a stay is granted; and 4. whether the stay would serve the public interest. E.g. Drislor Assoc., 110 B.R. at 939; Sandra Cotton v. Bank of New York, 64 B.R. 262, 263 (W.D.N.Y.1986); In re Cretella, 47 B.R. 382, 383-84 (E.D.N.Y.1984); In re Dakota Rail, Inc., 111 B.R. 818, 820 (Bankr.D.Minn.1990); In re Microwave Prod. of America, 102 B.R. 659, 660 (Bankr.W.D.Tenn.1989); In re Intermet Realty Partnership, 27 B.R. 938, 939 (Bankr.E.D.Pa.1983). Balancing of the four factors in" }, { "docid": "6753886", "title": "", "text": "brief one. Id. Bankruptcy Rule 8005 provides in pertinent part that “a motion for a [stay of the order of a bankruptcy judge] ... may be made to the ... bankruptcy appellate pan-el____” In Hirschfeld v. Board of Elections, 984 F.2d 35, 39 (2d Cir.1992), the Court of Appeals established a four part test for determining whether to grant a motion for stay pending appeal: “(1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a ‘substantial possibility, although less than a likelihood, of success’ on appeal, and (4) the public interests that may be affected.” As the moving party, the Appellants must show “ ‘satisfactory’ evidence on all four criteria.” Bijan-Sara Corp. v. Federal Deposit Ins. Corp. (In re Bijan-Sara Corp.), 203 B.R. 358, 360 (2d Cir. BAP 1996) (quoting In re Charles & Lillian Brown’s Hotel, Inc., 93 B.R. 49, 53 (Bankr.S.D.N.Y.1988)). Failure to satisfy one prong of this standard for granting a stay will doom the motion. Bijan-Sara Corp., 203 B.R. at 360 (citing Green Point Bank v. Treston, 188 B.R. 9, 12 (S.D.N.Y.1995)). Although the standard developed in Hirschfeld was applied in the context of Rule 8A of the Federal Rules of Appellate Procedure, Bankruptcy Rule 8005 is directly adapted from Rule 8A. See F.R.Bankr.P. 8005 advisory committee’s note (1983). Country Squire Assocs. of Carle Place, L.P. v. Rochester Comm. Savings Bank (In re Country Squire Assocs. of Carle Place, L.P., 203 B.R. 182, 183 (2d Cir. BAP 1996) (citing cases). A.Irreparable Injury to Appellants Absent a Stay It is evident that absent a stay pending appeal the foreclosure sale will be finalized and the Turners will be evicted from their home. Citizen’s response to this facial prejudice is that because the Turners are seeking to sell the property under their chapter 13 plan it matters little if the sale happens sooner or later. We agree. Although ease law is legion that filing a bankruptcy petition to forestall a foreclosure sale is a permissible use of" }, { "docid": "3102048", "title": "", "text": "movant must establish that there is a strong likelihood of success on the merits of its appeal; that he will suffer irreparable harm if a stay is not granted; that the harm will outweigh any harm opposing parties will suffer if a stay is granted; and that the public interest would be furthered by the granting of a stay, (citation omitted). Failure to meet even one of the criteria justifies denial. Id. (emphasis added). Id. at 804, n. 31. Courts have also held that the moving party must show “satisfactory evidence on all four criteria.” In re Charles & Lillian Brown’s Hotel, Inc., 93 B.R. 49, 53 (Bankr.S.D.N.Y.1988). The “failure to satisfy one prong of the standard for granting a stay pending appeal dooms his motion.” Green Point v. Treston, 188 B.R. 9, 12 (S.D.N.Y.1995) In applying the four elements governing stays pending appeal, the following observations are in order: IRREPARABLE INJURY TO THE MOVANT In support of this requirement, Nepomuk contends, which contention is not challenged by the Debtor, that in the event Nepomuk prevails on appeal and the Plan is confirmed and consummated, the appeal will be moot. This is so because there will be no funds to pay the amount of Nepomuk’s administrative claim if on appeal the administrative claim is found to be valid by District Court. According to Nepomuk, unless the stay is granted, Nepomuk will be denied any effective relief and left without remedy. In this unusual ease, it is now clear that after the payments, albeit not in full, of the super-priority claim of the Morgan Bank Group based upon 11 U.S.C. § 507(b) and a super-priority claim granted to Canadian Pacific Limited (“Canadian Pacific”), or its subsidiary Grouse (Bermuda) Limited (“Grouse”) for funds advanced to the Debtor postpetition, there will be no funds remaining to pay the administrative claims, except to the reduced extent agreed upon by the holders of such claims. Moreover, if the Plan fails to obtain confirmation and the case is converted to a Chapter 7 case, there is no question that Nepomuk’s claim will not be satisfied, even" }, { "docid": "3102047", "title": "", "text": "South Savings Ass’n., 820 F.2d 700 (5th Cir.1987); Green Point Bank v. Treston, 188 B.R. 9, 11 (S.D.N.Y.1995); In re Advanced Mining Systems, Inc., 173 B.R. 467, 468 (S.D.N.Y.1994); In re Sphere Holding Corp., 162 B.R. 639, 642 (E.D.N.Y.1994); In re Dale Mabry Properties, Ltd., 149 B.R. 209 (M.D.Fla.1992); In re Bob Hamilton Real Estate, Inc., 164 B.R. 703 (Bankr.M.D.Fla.1994). The Court in Charter, supra, also held that the burden is on the party who seeks a stay under F.R.B.P. 8005 and that the party seeking the stay must establish all of the elements set forth above. Nepomuk, realizing that it may not be able to meet all of the elements, nevertheless contends that it still may obtain the relief it is seeking by a strong showing that it will likely succeed on appeal. This proposition urged by Nepomuk is not supported by existing law. The First Circuit Court of Appeals in In re Power Recovery Systems, Inc., 950 F.2d 798 (1st Cir.1991) stated: To satisfy the standard for the issuance of a stay, the movant must establish that there is a strong likelihood of success on the merits of its appeal; that he will suffer irreparable harm if a stay is not granted; that the harm will outweigh any harm opposing parties will suffer if a stay is granted; and that the public interest would be furthered by the granting of a stay, (citation omitted). Failure to meet even one of the criteria justifies denial. Id. (emphasis added). Id. at 804, n. 31. Courts have also held that the moving party must show “satisfactory evidence on all four criteria.” In re Charles & Lillian Brown’s Hotel, Inc., 93 B.R. 49, 53 (Bankr.S.D.N.Y.1988). The “failure to satisfy one prong of the standard for granting a stay pending appeal dooms his motion.” Green Point v. Treston, 188 B.R. 9, 12 (S.D.N.Y.1995) In applying the four elements governing stays pending appeal, the following observations are in order: IRREPARABLE INJURY TO THE MOVANT In support of this requirement, Nepomuk contends, which contention is not challenged by the Debtor, that in the event Nepomuk" }, { "docid": "6572708", "title": "", "text": "40 B.R. 219 (S.D.N.Y.1984), order rev’d in part, 41 B.R. 926 (S.D.N.Y.1984)). Section 105(a) of the Bankruptcy Code states that The Court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. Section 105 enables this court, in the exercise of its equity powers, to stay proceedings not covered by the automatic stay provisions of 11 U.S.C. § 362(a). 2 Collier on Bankruptcy, ¶ 105.02 (15th ed.1983), cited in Anje Jewelry, supra, 47 B.R. at 486. However, non-debtor stays are not to be granted freely; Bankruptcy Judge Lifland cautions: “Section 105 does not have a life of its own and this extension may only be accomplished within the proper boundaries of Section 362.” Johns-Manville, supra, 26 B.R. at 414-15, quoted in Anje Jewelry, supra, 47 B.R. at 486-87. The primary considerations for determining when a non-debtor codefendant may properly be granted a stay under § 105 are: “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” In re Anje Jewelry Co., Inc., supra, 47 B.R. at 487 (citing In re Vantage Petroleum Corp., 25 B.R. 471, 477 (Bankr.E.D.N.Y.1982) and Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (other citations omitted)). One element of irreparable harm is “interference with the rehabilitative process,” 2 Collier on Bankruptcy ¶ 362.05 (15th ed. 1982), cited in Johns-Manville, supra, 26 B.R. at 425; see also Anje Jewelry Co., supra, 47 B.R. at 487. This test is met when the action against the non-debtor co-defendant is so “inextricably interwoven” with the affairs of the debtor that it would “substantially hinder the debtor’s reorganization effort.” Anje Jewelry, supra, 47 B.R. at 487; see also In re Ms. Kipps, Inc. and Kay Kipps, Ltd., 34 B.R. 91, 92 (Bankr.S.D.N.Y.1983). In Ms. Kipps, the codefendant was the non-debtor president of two bankrupt companies which continued their operations" }, { "docid": "13789211", "title": "", "text": "Continental’s motions. Continental now moves this court for a stay pending appeal of the bankruptcy court’s order confirming the Plan. On August 7, 1995, this court issued a temporary stay pending completion of the record below. As that record is now complete, the issue of whether to continue or dissolve the stay is ripe for consideration. II. Rule 8005 of the Federal Rules of Bankruptcy Procedure governs the issuance of a stay pending an appeal of a bankruptcy court order. Although the issuance of a stay is left to the court’s discretion, the Fourth Circuit requires a party seeking a stay to meet the same criteria movants for a preliminary injunction must meet in seeking their relief. Long v. Robinson, 432 F.2d 977 (4th Cir.1970); City of Alexandria v. Helms, 719 F.2d 699 (4th Cir.1983); In re Tolco Properties, Inc., 6 B.R. 490 (Bankr.E.D.Va.1980). In the Fourth Circuit, district courts must consider, in “flexible interplay,” four factors in determining whether to issue a preliminary injunction: 1) the likelihood of irreparable harm to the plaintiff without the injunction; 2) the likelihood of harm to the defendant with an injunction; 3) the plaintiffs likelihood of success on the merits; and 4) the public interest. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189,193-96 (4th Cir.1977). The Fourth Circuit recently reiterated the proper framework within which to analyze these four factors: First, the party requesting preliminary relief must make a “clear showing” that he will suffer irreparable harm if the court denies his request. Second, if the party establishes that he will suffer irreparable harm, “the next step then for the court to take is to balance the likelihood of irreparable harm to the plaintiff from the failure to grant interim relief against the likelihood of harm to the defendant from the grant of such relief.” Third, if the balance tips decidedly in favor of the party requesting preliminary relief, “a preliminary injunction will be granted if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful, as to make them fair ground for litigation and thus" }, { "docid": "4688370", "title": "", "text": "8005, this court has express authority to grant a stay of the bankruptcy court’s order while this appeal of the order is pending. See In re X-Cel Constructors of Delaware, Inc., 76 B.R. 969 (D.N.J.1987) (applying both rules); Sandra Cotton, Inc. v. Bank of New York, 64 B.R. 262 (W.D.N.Y.1986) (applying Rule 8005). Under both of these rules, whether a stay pending appeal should be granted in this case turns on the following factors: (1) the movant’s likelihood of success on the merits of the appeal; (2) whether the movant will suffer irreparable injury if a stay pending the appeal is not granted; (3) whether other parties will suffer substantial harm if the stay is issued; (4) whether there will be harm to the public interest if the stay is issued. Id. Courts applying this test impose the burden on the movant to show that these factors balance in his favor and warrant issuance of a stay while the appeal is pending. See X-Cel Constructors, 76 B.R. at 970; Sandra Cotton, 64 B.R. at 263; In re Cretella, 47 B.R. 382 (E.D.N.Y. 1984). In the instant case, the Hamiltons have not shown that the factors balance in their favor. First, they have not established that they will suffer irreparable harm if a temporary stay is not issued. In Sandra Cotton, the court held that debtors in a position similar to the Hamiltons’ could be adequately compensated by damages if they lost their interest in the property through a wrongful foreclosure. The Hamiltons have offered nothing to rebut this authority. Therefore, they have failed to persuade the court that they will suffer irreparable harm. Moreover, the Hamiltons also have not persuaded the court that there is a likelihood that they will prevail on the merits of their appeal. Under § 362(d)(1) of the Bankruptcy Code, 11 U.S.C. § 362(d)(1) (1982), the bankruptcy court has the authority to modify the automatic stay “for cause, including lack of adequate protection” of a creditor’s interest in property held by the debtor. The bankruptcy court exercised that authority when it lifted the stay with respect" }, { "docid": "22026568", "title": "", "text": "MEMORANDUM OPINION KAPLAN, District Judge. The United States of America moves for an order (1) staying the Bankruptcy Court’s order confirming the debtor’s third amended plan of reorganization, (2) withdrawing the reference to the Bankruptcy Court of the debtor’s allowance of the government’s pre-petition claims, (3) staying the Bankruptcy Court’s hearing on the objection pending this Court’s ruling on the motion to withdraw the reference, and (4) staying any distribution to general unsecured creditors pursuant to the confirmation order pending final determination of the debtor’s objection to allowance of the government’s pre-petition claims. The matter is of some urgency. Distributions pursuant to the plan were scheduled to commence on August 28,1995. This application was brought on by order to show cause late on August 25, 1995, at which time the Court stayed the confirmation order to enable the debtor and other parties in interest to brief the motion for a stay. Opposing briefs were received on August 28, 1995. This is the Court’s decision on the government’s motion for a stay of the confirmation order and of any distributions pursuant to the plan pending appeal. The Court reserves decision on the motion to withdraw the reference and for a stay pending determination of that motion. Standard for Issuance of a Stay The standard for issuance of a stay pending appeal is similar to that governing motions for preliminary injunctions. The Court should consider (1) the movant’s likelihood of success on appeal, (2) the risk of irreparable harm to the movant absent a stay, (3) the risk of irreparable harm to the other party if a stay is denied, and (4) the public interest. In re Leibinger-Roberts, Inc., 92 B.R. 570, 574 (E.D.N.Y.1988); see also In re Advanced Mining Systems, Inc., 173 B.R. 467 (S.D.N.Y.1994); In re de Kleinman, 150 B.R. 524, 528 (Bankr.S.D.N.Y.1992). For the reasons set forth below, the Court concludes that these factors, taken together, warrant a brief stay pending an expedited appeal. The Merits of the Appeal The focus of the government’s concern with the confirmed plan is release provisions in the plan and in the so-called" }, { "docid": "18726623", "title": "", "text": "the movant must establish (1) the strong likelihood of success on the merits of the appeal; (2) that the movant will suffer irreparable injury if the state is denied; (3) that no substantial harm will be suffered by others if the stay is granted; and (4) what the harm to the public interest, if implicated, is. [In re Charles & Lillian ] Brovm’s Hotel, 93 B.R. [49] at 53 [Bankr.S.D.N.Y.1988]; Liggett, 118 B.R. at 221. All four criteria must be satisfied before relief under Rule 8005 will be granted. Brown’s Hotel, 93 B.R. at 53. In the case at bar the fourth factor is not important because the public interest is not meaningfully implicated. The second and third factors strongly favor a stay. In their briefs and arguments, counsel tend to treat these factors as the other side of the coin presented by the first factor: the likelihood of success on the merits of the appeal. Thus the Objectors say the Affiliates can suffer no prejudice from the denial of a stay because their underlying claim clearly has no merit. The Affiliates say the Objectors will suffer no prejudice from the granting of a stay because the assets involved clearly belong to them. These arguments, which cancel each other out, do not squarely address the issue, which focuses upon prejudice to either party during the interim between appeal and appellate decision, if a stay is granted or denied. If a stay pending appeal is denied, the debtors’ assets will be distributed without any reserve for the Affiliates’ claim. That is the consequence of the Bankruptcy Court’s subsequent order in September, which granted the Objectors’ application to make a distribution to creditors without maintaining a reserve for that claim. The inevitable result, which the Objectors cannot reasonably question, is that a denial of a stay would moot the appeal and deny the Affiliates any recovery. That is a quintessential form of prejudice to the Affiliates. The Objectors’ efforts to show prejudice to them if the stay is granted do not persuade. If the Affiliates’ appeal is ultimately rejected, there will have" }, { "docid": "18726622", "title": "", "text": "HAIGHT, District Judge: In this bankruptcy ease, I am asked to stay proceedings in the Bankruptcy Court pending an appeal by Gary Lutin and certain non-debtor affiliates of the debtors (the “Affiliates”) from an order of that Court dated June 3, 1994 (Blackshear, J.) expunging the Affiliate’s administrative claim. The Affiliates base this requested relief on the All-Writs Statute, 28 U.S.C. § 1651, or in the alternative upon Bankruptcy Rule 8005. The debtors and the Committee of Creditors (the “Objectors”) oppose the stay. I grant the stay under Rule 8005, and do not find it necessary to consider § 1651. The standards for granting a stay pending an appeal in bankruptcy are summarized in In re de Kleinman, 150 B.R. 524, 528 (Bankr.S.D.N.Y.1993): The standards for the grant of a stay pending appeal are the same as those governing the grant of an injunction. Sandra Cotton, Inc. v. Bank of New york, 64 B.R. 262, 263 (W.D.N.Y.1986), appeal dismissed, 87 B.R. 272 (W.D.N.Y.1988), In re Liggett, 118 B.R. 219, 221 (Bankr.S.D.N.Y.1990). To obtain such relief, the movant must establish (1) the strong likelihood of success on the merits of the appeal; (2) that the movant will suffer irreparable injury if the state is denied; (3) that no substantial harm will be suffered by others if the stay is granted; and (4) what the harm to the public interest, if implicated, is. [In re Charles & Lillian ] Brovm’s Hotel, 93 B.R. [49] at 53 [Bankr.S.D.N.Y.1988]; Liggett, 118 B.R. at 221. All four criteria must be satisfied before relief under Rule 8005 will be granted. Brown’s Hotel, 93 B.R. at 53. In the case at bar the fourth factor is not important because the public interest is not meaningfully implicated. The second and third factors strongly favor a stay. In their briefs and arguments, counsel tend to treat these factors as the other side of the coin presented by the first factor: the likelihood of success on the merits of the appeal. Thus the Objectors say the Affiliates can suffer no prejudice from the denial of a stay because their underlying" }, { "docid": "1092741", "title": "", "text": "appeal. Rule 8005 is itself of no assistance in terms of lending guidance as to when a stay is appropriate. Fortunately, courts interpreting the rule have set forth uniform standards applicable to motions for stays. In considering whether to grant a stay, this court must balance the following four factors: 1. whether Beneficial is likely to succeed on the merits of its appeal; 2. whether Beneficial will suffer irreparable harm if the stay is denied; 3. whether the harm which Beneficial would suffer as a result of no stay outweighs the potential injury to the Moreaus if a stay is granted; and 4. whether the stay would serve the public interest. E.g. Drislor Assoc., 110 B.R. at 939; Sandra Cotton v. Bank of New York, 64 B.R. 262, 263 (W.D.N.Y.1986); In re Cretella, 47 B.R. 382, 383-84 (E.D.N.Y.1984); In re Dakota Rail, Inc., 111 B.R. 818, 820 (Bankr.D.Minn.1990); In re Microwave Prod. of America, 102 B.R. 659, 660 (Bankr.W.D.Tenn.1989); In re Intermet Realty Partnership, 27 B.R. 938, 939 (Bankr.E.D.Pa.1983). Balancing of the four factors in this case indicates that a grant of stay is warranted. The factors will be discussed seriatim. A. Likelihood of success on the merits Beneficial’s argument that the bankruptcy court erred in not conducting a new valuation hearing shortly before confirming the Moreau’s plan is grounded in 11 U.S.C. § 1325(a)(5) (1988 & West Supp. 1991) (“Confirmation of the Plan”). That section of Chapter 13 requires the court to confirm a plan if, inter alia, the plan assures that a holder of a secured claim in property will receive at least the value, “as of the effective date of the plan, ” of the amount of his secured claim. Id. (emphasis added). This statute clearly requires the bankruptcy court, in considering confirmation of a plan, to make a determination of the value of secured property as of the effective date of the plan. The bankruptcy court’s inquiry must thus focus on the “effective date” of the plan. Beneficial has persuaded the court, at least for purposes of its motion for a stay, that the “effective date”" } ]

[ { "docid": "2708031", "title": "", "text": "introduced no evidence as to the value of the real estate enhanced by the fence. One of the plaintiff’s witnesses testified that the fence had a value commensurate with its cost but made no comparison of sale prices of surrounding real estate and therefore, that evaluation is not persuasive. Plaintiff’s manager testified that the value of the fence used was $2,300.00 but that the cost of removal and a commission on resale would reduce plaintiff’s net recovery to about $1,000.00. He also testified that the cost of replacement would exceed debtors’ cost. The Court pointed out in its earlier opinion in this matter that the valuation, for purposes of redemption, is controlled by § 506 of the Code, Title 11, U.S.C. The statute directs that the value of the secured claims “shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property ... ”. Collier suggests that value is to be determined on a “case by case basis” and the Court is to find some satisfactory point between liquidation price and the price of a going concern. 3 Collier on Bankruptcy ¶ 506.03 (15th Ed.). Plaintiff’s manager’s testimony discounts,the fence by 20% of the price of material and also by the cost of labor. Yet he also noted that the fence material had a warranty for 30 years. Redemption under the Uniform Commercial Code requires the debtor to fulfill all of his obligations under the contract, as well as expenses and fees. Section 400.9-506, R.S.Mo.1978. On the other hand, right to redeem under § 722 of the Bankruptcy Code clearly contemplates payment of less than the contract price. See Bkr.-L. Ed., Code Commentary and Analysis § 32:6. The fence, installed, has a value in excess of liquidation or even that of second hand material. Based upon the statutory guidelines and the evidence, the Court finds that the fence is tangible personal property which may be redeemed and that its value for redemption purposes is $2,700.00. Section 722 does not state how the redemption price should be paid, but Courts have" } ]

[ { "docid": "23027849", "title": "", "text": "Pursuant to 11 U.S.C. Section 1325(a)(5)(B)(ii), as of what date should a secured claim be valued. (3) What is the appropriate discount rate to be paid on GMAC’s secured claim in the case at bar. I. Section 506 of the Bankruptcy Code provides that a creditor has a secured claim to the extent of the value of the collateral. 11 U.S.C. Section 506(a); In re Jones, 5 B.R. 736, 6 B.C.D. 965 (Bkrtcy.E.D.Va.1980); In re Cooper, 7 B.R. 537, 7 B.C.D. 24 (Bkrtcy. N.D.Ga.1980). Where the collateral securing the creditor’s claim is valued less than the face amount of the claim, as in the case at bar, the creditor’s claim is divided into two parts: an allowed secured claim which is equal to the value of the collateral and an allowed unsecured claim for the deficiency. H.R.Rep. No. 95-595, 95th Congr., 1st Sess., at p. 356 (1977), U.S.Code Cong. & Admin. News 1978, p. 5787; In re Jones, supra; In re Anderson, 6 B.R. 601, 6 B.C.D. 1155 (Bkrtcy.S.D.Ohio 1980). Although Section 506(a) sets forth general principles for the courts to follow when called upon to determine the value of a creditor’s secured claim, the statutory language does not offer specific guidelines on the question. In re Jones, supra. The statute is extremely flexible and states simply that “(s)uch value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest.” 11 U.S.C. Section 506(a). The legislative history, while equally as general as the statutory language of Section 506(a), does indicate that the concept of value is to be flexible and grants discretion to the courts to determine value on a case-by-case basis, taking into account the facts and competing interests in each case. H.R.Rep. No. 95-595, 95th Congr., 1st Sess., at p. 356 (1977); .In re Jones, supra. A review of the reported decisions on the issue presented indicates that there are two basic approaches that the courts have followed" }, { "docid": "13944064", "title": "", "text": "on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition ór use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. Thus, Section 506(a) bifurcates an underse-cured creditor’s claim into two parts: a claim is secured to the extent of the value of the creditor’s interest in the collateral; and it is unsecured for the balance of the claim. Legislative history helps clarify Section 506(a). The Senate Report indicates that “[w]hile courts will have to determine value on a case-by-case basis, the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property.” S.Rep. No. 989, 95th Cong., 2d Sess. 68 (1978) U.S.Code Cong. & Admin.News 1978, pp. 5787, 5845. Similarly, the House Report states that “ ‘[vjalue’ does not necessarily contemplate forced sale or liquidation value of the collateral; nor does it always imply a full going concern value. Courts will have to determine on a case-by-case basis, taking into account the facts of each case and the competing interests in the case.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 356 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5854, and 6312. Courts have not consistently applied these concepts in the context of secured claims on automobiles held by financial institutions when a debtor proposes to retain and use the vehicles. For purposes of setting the allowed amounts of secured claims in a Chapter 13 plan, value has been determined on the following bases: (1) wholesale value (see In re Smith, 42 B.R. 198, 200 (Bankr.N.D.Ga.1984); In re Cook, 38 B.R. 870, 875" }, { "docid": "10280774", "title": "", "text": "it is essential for the bankruptcy court to estimate the value of the “dirt” in order to determine how much of the collateral will ultimately be transferred to the creditor in satisfaction of the debt. Section 506(a) permits a bankruptcy court to establish the value of property in a bankruptcy case. The first sentence of § 506(a) requires the bankruptcy court to bifurcate a claim into separate and independent secured claim and unsecured claim components. In re Case, 115 B.R. 666, 670 (9th Cir. BAP 1990). The second sentence of § 506(a) expresses the guidance provided by the Bankruptcy Code with respect to the valuation of the property subject to a lien or setoff. See, 3 Lawrence P. King, Collier on Bankruptcy, ¶ 506.04[2] at 506-25 (15th ed.1993). The second sentence of § 506(a) provides: Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing .on such disposition or use or on a plan affecting such creditors interest. 11 U.S.C. § 506(a). The legislative history from the House and Senate Reports provides guidance in formulating two general propositions for valuations under § 506(a). First, a bankruptcy court should determine value under § 506(a) on a case-by-case basis. See, S.Rep. No. 989, 95th Cong., 2d Sess. 68 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5854; H.R.Rep. No. 595, 95th Cong. 1st Sess. 356 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 6312. The House Report provides: “Value” does not necessarily contemplate forced sale or liquidation value of the collateral; nor does it always imply a full going concern value. Courts will have to determine value on a case-by-case basis, taking into account the facts of each case and the competing interests in the case. H.R.Rep. No. 595, 95th Cong. 1st Sess. 356 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 6312. Second, a valuation under § 506(a) should be made in light of the Code section that is relevant at the time the valuation is made. See, S.Rep. No. 989, 95th Cong., 2d Sess. 68 (1978), reprinted" }, { "docid": "11504774", "title": "", "text": "not necessarily contemplate forced sale or liquidation value of the collateral; nor does it always imply a full going concern value. Courts will have to determine value on a case-by-ease basis, taking into account the facts of each case and the competing interests in the case. H.R.Rep. No. 595, 95th Cong., 1st Sess. 356 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 6312. The Senate Report further states that “[w]hile courts will have to determine value on a case-by-case basis, the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property.” S.Rep. No. 989, 95th Cong., 1st Sess. 68, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5854. The valuation process is not an exact science, and the court must allocate varying degrees of weight depending upon the court’s opinion of the credibility of that evidence. In re White, 93-75430, slip op. at 6 (Bankr.D.S.C. 8/30/94) (JBD). In their motions in this proceeding, the parties did not specify the purpose of the valuation, but this Court finds the value determined shall serve for purposes of adequate protection considerations under the § 362 motion as well as for treatment of the creditor’s claim under the Chapter 13 Plan. A recent decision from the Fourth Circuit reiterated the intent of § 506. Property valuations in bankruptcy are “determined in light of the purpose of the valuation and of the proposed disposition or use of such property.” [Matter of] Vit reous Steel [Products Co.], 911 F.2d [1223] at 1232 [ (7th Cir.1990) ]. We have noted that “estimates of value made during bankruptcy proceedings are ‘binding only for the purposes of the specific hearing and ... [d]o not have a res judicata effect’ in subsequent hearings.” In re Snowshoe, Inc., 789 F.2d 1085, 1088-89 (4th Cir.1986). (citations omitted). Accordingly, valuation is a question of fact, and can be overturned on appeal only if clearly erroneous. In re Midway Partners, 995 F.2d 490, 493 (4th Cir.1993). Estate Const. Co. v. Miller & Smith Holding Co.," }, { "docid": "13944065", "title": "", "text": "of the valuation and the proposed disposition or use of the subject property.” S.Rep. No. 989, 95th Cong., 2d Sess. 68 (1978) U.S.Code Cong. & Admin.News 1978, pp. 5787, 5845. Similarly, the House Report states that “ ‘[vjalue’ does not necessarily contemplate forced sale or liquidation value of the collateral; nor does it always imply a full going concern value. Courts will have to determine on a case-by-case basis, taking into account the facts of each case and the competing interests in the case.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 356 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5854, and 6312. Courts have not consistently applied these concepts in the context of secured claims on automobiles held by financial institutions when a debtor proposes to retain and use the vehicles. For purposes of setting the allowed amounts of secured claims in a Chapter 13 plan, value has been determined on the following bases: (1) wholesale value (see In re Smith, 42 B.R. 198, 200 (Bankr.N.D.Ga.1984); In re Cook, 38 B.R. 870, 875 (Bankr.D.Utah 1984)); (2) retail replacement cost (see Matter of Reynolds, 17 B.R. 489, 493 (Bankr.N.D.Ga.1981)); and (3) various combinations of the two, including the average between wholesale and retail value. See 3 Collier on Bankruptcy ¶ 506.04[2], at 506-36 to -37 (15th ed. 1989). Such valuations have been made in' light of the facts and evidence presented regarding the purpose and disposition or use of the vehicles in each particular case, and no clear cut formula or benchmark of value exists. In the instant case, both parties vigorously attempt to persuade this Panel that its interpretation of Section 506(a) is the correct one. VNB asserts that because the second sentence of section 506(a) specifically states that “value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property,” the value of the vehicles should be determined based on their retention and use by the debtors. To support its position, VNB relies heavily on In re Courtright, 57 B.R. 495, 497 (Bankr.D.Or.1986), and In re Sprecher," }, { "docid": "1139972", "title": "", "text": "on a fair market value, not a liquidating value. In re Yoder, 32 B.R. 777 (Bankr.W.D.Pa.1983); In re Fursman Ranch, 38 B.R. 907, 909 (Bankr.W.D.Mo.1984): ‘This court is obliged to value collateral “in light of the purposes of the valuation and of the proposed disposi tion or use of such property, and in conjunction with any hearing — on the plan affecting such creditor’s interest”. The legislative history suggests that the valuation is to be made on a case by case basis, consistent with the time of the valuation. Senate Report No. 95-989, 95th Cong.2d Sess. (1978) 68, U.S.Code Cong. & Admin.News 1978, p. 5787, reported in App. 3 Collier on Bankruptcy, (15th Ed.); * * # ft See also In re Martin, 66 B.R. 921, 927 (Bankr.Mont.1986). The valuation for the purposes of 1225(a)(5)(B)(ii) is to be fixed ‘as of or close to the effective date of the Plan’. In re Cook, 38 B.R. 870 (Bankr.Utah 1984). In regard to value, In re Courtright, 57 B.R. 495, 496 (Bankr.Or.1986), states: ‘The court believes that it should start with the fair market value of the property as that term is generally understood to be, i.e., the price which a willing seller under no compulsion to sell and a willing buyer under no compulsion to buy would agree upon after the property has been exposed to the market for a reasonable time. The court should not use that value which would be obtained through a forced or quick sale.’ The appraiser for Metropolitan expanded on such definition to include that the buyer should be knowledgeable of all uses and purposes for which the property is adopted and for which it was or is capable of use. Three approaches to fair market value are generally recognized, to-wit: (1) the market data or comparable sales approach; (2) the income approach, and (3) the cost or replacement approach.” Robinson, supra, and In re Cormier, 75 B.R. 692, 4 Mont.B.R. 224, 225 (Bankr.Mont.1987) further stand for the proposition that under Section 506(a), the Debtors' proposed use of the property should be utilized by the appraiser," }, { "docid": "23424868", "title": "", "text": "require that debtor sell the property or that creditor dispose of it before a value is fixed. The land to be surrendered is both pasture and cropland. Three tracts are 80, 240 and 320 acres respectively and the fourth is 1187 acres. Generally, prices per acre for small tracts are better than those for larger tracts. Cropland is more valuable than pastureland. Substantial evidence has been introduced as to comparable sales and soil composition. Debtors have owned the property for so many years that purchase prices are not persuasive. The market is mildly depressed but there is activity. No evidence was introduced to show the sale price of a large tract. Comparables for tracts of up to 320 acres were presented. These ranged from $269 per acre to $800 per acre. In its proposal debtor values the property from $475 to $780 per acre. The highest value is for cropland in smaller tracts. The Court is obliged to value collateral “in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing ... on a plan affecting such creditor’s interest”. The legislative history suggests that the valuation is to be made on a ease by case basis, consistent with the time of the valuation. Senate Report No. 95-989, 95th Cong., 2d Sess. (1978) 68, U.S. Code Cong. & Admin.News 1978, p. 5787, reprinted in App. 3 Collier on Bankruptcy (15th Ed.); see 3 Collier on Bankruptcy ¶ 506.04 (15th Ed.) where the commentator states: “In the usual instance in which the nature of the debtor’s prospects are not absolutely clear, the valuation should properly take all material possibilities into consideration and weigh their likelihood in arriving at a value. Thus, it is probably more appropriate to view the varying bases and manners of valuation as establishing a range of possible values as opposed to a finite set of alternatives”. 3 Collier on Bankruptcy, ¶ 506.04 at p. 506-24. Barash v. Public Finance Corp., 658 F.2d 504, 511 (7th Cir.1981); In re Damron, 8 B.R. 323 (Bkrtcy.S.D.Ohio 1980). Because" }, { "docid": "10211316", "title": "", "text": "must file a claim in order to participate in the distribution of estate assets. See, H.R.Rep. No. 95-595, 95th Cong., 2nd Sess. 61 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. 11 U.S.C. § 501 does not establish any time limitations for the filing of claims; however, in passing the Bankruptcy Reform Act of 1978, Congress intended the time limitation for Chapter 7 cases continue to be the same period specified in the then existing Rules of Bankruptcy Procedure until new rules could be promulgated. See, Sen.Rep. No. 989, 95th Cong., 2nd Sess. 61 (1978). With exceptions not pertinent to this case, Rule 302(e) provides that a claim must be filed within six months from the date of the first meeting of creditors. Appellant’s proposed amended claim clearly did not meet this deadline. The courts have generally held that this six month period is in the nature of a statute of limitations and is to be construed narrowly. See, In re Brown, 27 B.R. 771 (Bkrtcy.N.D.Ill.1983); In re Green, 30 B.R. 729 (Bkrtcy D RI 1983); In re Brown, 14 B.R. 233 (Bkrtcy ND Ill 1981); In re Foster, 11 B.R. 476 (Bkrtcy.S.D.Cal.1981). Appellant does not argue that its letter to the trustee or the Complaint objecting to the discharge of its debt is a formal proof of claim in the sense of complying with Bankruptcy Rule 302 and Official Form 15. However, the courts have created an exception to the filing of a standard claim form by allowing other documents filed within the six month period to serve as an informal proof of claim so long as the documents show that a demand is being made against the estate and that the creditor intends to pursue that claim. See, e.g., Matter of Evanston Motor Co., Inc., 26 B.R. 998 (N.D.Ill.1983). The tardy creditor must also show that no prejudice will result to other creditors or an undue administrative burden placed upon the bankruptcy court as would be the case where the amended claim was filed subsequent to final distribution of estate assets to priority and unsecured creditors. See, In" }, { "docid": "10183092", "title": "", "text": "sale or liquidation value of the collateral; nor does it always imply a full going concern value. Courts will have to determine value on a case-by-case basis, taking into account the facts of each case and the competing interests in the case. H.R.Rep. No. 95-595, 95th Cong., lst .Sess. 356 (1977), reprinted in 5 U.S. Code Cong. & Admin. News 5787 6312 (1978). While courts will have to determine value on a case-by-case basis, the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property. S.Rep. No. 95-989, 95th Cong., 2nd Sess. 68 (1978), reprinted in 5 U.S. Code Cong. & Admin. News 5854 (1978). Were the debtors contemplating an actual disposition of the collateral, valuation would be based upon the consideration that the estate would expect to receive therefor, assuming the consideration to be fair. 3 Collier on Bankruptcy ¶ 506.04[2] (15th ed. 1986). Where, as under the present plan, the debtors propose retention and continued use of the collateral, a forced-sale or liquidation value of the collateral is inappropriate. Matter of QPL Components, Inc., 20 B.R. 342, 345 (Bankr.E.D.N.Y.1982). The essential inquiry is what “value” does the collateral have to the estate. As was stated in Matter of Crocket, 3 B.R. 365, 367 (Bankr.N.D.Ill.1980), with regard to valuing a secured claim under a Chapter 13 plan, but equally applicable to valuing Dollar’s claim under the proposed Chapter 11 plan: Under a Chapter 13 plan the secured claim should be valued with due regard to the value of the property to the estate. ‘[T]he proposed disposition or use of such property’ (Sec. 506(a)) in the instant case is for the debtors’ retention and use. Therefore, the debtors cannot eat with the hounds and run with the hares. Seeking retention of the property, they cannot insist on liquidation values to be paid to the creditor ... The value of GMAC’s secured claim under § 506(a) is enhanced by the continued use of the collateral in effectuating the debtors’ performance under the plan," }, { "docid": "18524259", "title": "", "text": "is secured only to the extent of the value of the property on which the Hen is fixed while the remainder of the claim is considered unsecured. Id.; United States v. Ron Pair Enterprises, 489 U.S. 235, 239, 109 S.Ct. 1026, 1029, 103 L.Ed.2d 290, 297 (1989). The method of valuation varies among the courts because the statutory language of § 506(a) is drafted broadly. The legislative intent behind § 506(a) is equally unclear. The House Report indicates that valuation does not “necessarily contemplate forced sale or liquidation value of the collateral, nor does it always imply a full going concern value” but is determined on a “case-by-case basis, taking into account the facts of each case and the competing interests in the ease.” H.R.Rep. No. 96-595, 95th Cong., 2d Sess. 356, reprinted in 5 U.S.Code Cong. & Admin.News at 5787, 6312 (1978). Similarly, the Senate Report indicates that “while courts will have to determine value on a case-by-case basis, the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property.” S.Rep. No. 95-989, 95th Cong., 2d Sess. 68, reprinted in 5 U.S.Code Cong. & Admin.News at 5854 (1978). Consequently, courts are divided between using a valuation approach of what a creditor could recover in a commercially reasonable manner and the debtor’s intends proposed use of the collateral. Courts adopting the “commercially reasonable manner” approach emphasize the “creditor’s interest in the estate property” in the beginning portion of § 506(a). See, e.g., In re Boring, 91 B.R. 791, 795 (Bankr.S.D.Ohio 1988); In re Paige, 13 B.R. 713, 714-15 (Bankr.S.D.Ohio 1981). Courts adopting the debtor’s “intended use approach” emphasize the latter portion of § 506(a) — “in light of the purpose of the valuation and proposed disposition of use of such property” — to support their statutory interpretation. See, e.g., In re Spacek, 112 B.R. 162, 163 (Bankr.W.D.Tex.1990) (using intended use rule when debtor retained collateral); In re Foster, 79 B.R. 906, 908 (Barikr.D.Mont.1987); In re Courtright, 57 B.R. 495, 497 (Bankr.D.Or.1986) (using" }, { "docid": "10194361", "title": "", "text": "not necessarily contemplate forced sale or liquidation value of the collateral; nor does it always imply a full going concern value.” H.R. No. 95-595, 95th Cong., 1st Sess. 356 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6312. “While courts will have to determine value on a case by case basis, the subsection makes it clear that valuation is to be determined in light of the purpose of valuation and proposed disposition or use of the subject property. This determination shall be made in conjunction with any hearing on such disposition or use of property or on a plan affecting the creditor’s interest.” S.Rep.No. 95-989, 95th Cong., 2nd Sess. 68 (1978), U.S.Code Cong. & Admin.News 1978, p. 5854. . On its face, it seems a bit shocking to propose to pay GMAC the same monthly payments over a shorter period than provided in the loan agreement and satisfy the debt through the Chapter 13 plan over a shorter period of time. Yet, the plan which proposes that the debtor retain the property as allowed under § 1325(a)(5) and pay the full amount of the allowed secured claim as determined under § 506(a) complies with the Bankruptcy Code. It is the other debts and the current employment situation of the debtors that render the debtors incapable of paying all their debts. The proposed plan is one which may be confirmed under the six (6) confirmation provisions of 11 U.S.C. § 1325(a), and does not present a Title 11 case which is improperly filed under Chapter 13 and thus is subject to dismissal. In re Wiggles, 6 B.C.D. 1326, 7 B.R. 373 (B.C.N.D.Ga.1980). Also, the amount proposed for the unsecured claim of GMAC and other unsecured claimants is greater than such claimants would receive under a Chapter 7 liquidation of debtors’ estate. 11 U.S.C. § 1325(a)(4). . Kenneth W. Kinser, et al v. Otasco, Inc., No. 81-0264A, N.D.Ga., Sept. 27, 1981. In re Cruseturner, 8 B.R. 581, 7 B.C.D. 235, 237 (Bkrtcy.D.Utah 1981). In re Miller, 4 B.R. 305, 6 B.C.D. 436, 437 (Bkrtcy.E.D.Mich.1980). . In re Pinegate Associates, 6 B.C.D. 301," }, { "docid": "23424869", "title": "", "text": "of such property, and in conjunction with any hearing ... on a plan affecting such creditor’s interest”. The legislative history suggests that the valuation is to be made on a ease by case basis, consistent with the time of the valuation. Senate Report No. 95-989, 95th Cong., 2d Sess. (1978) 68, U.S. Code Cong. & Admin.News 1978, p. 5787, reprinted in App. 3 Collier on Bankruptcy (15th Ed.); see 3 Collier on Bankruptcy ¶ 506.04 (15th Ed.) where the commentator states: “In the usual instance in which the nature of the debtor’s prospects are not absolutely clear, the valuation should properly take all material possibilities into consideration and weigh their likelihood in arriving at a value. Thus, it is probably more appropriate to view the varying bases and manners of valuation as establishing a range of possible values as opposed to a finite set of alternatives”. 3 Collier on Bankruptcy, ¶ 506.04 at p. 506-24. Barash v. Public Finance Corp., 658 F.2d 504, 511 (7th Cir.1981); In re Damron, 8 B.R. 323 (Bkrtcy.S.D.Ohio 1980). Because the debtor is surrendering the property to the creditor, foreclosure is not necessary. Creditors can dispose of the property in a commercially reasonable manner. Thus, fair market value is the appropriate valuation. 3 Collier on Bankruptcy 11 506.04 at p. 506, 24; Matter of Cooper, 7 B.R. 537 (Bkrtcy.N.D.Ga.1980). There is an additional safeguard here because this is an ongoing case. If a commercially reasonable sale by the creditors does not result in payment approximating the values set here, the creditors may ask for reconsideration of their claims. Cf. In re Crosthwait, 34 B.R. 469 (Bkrtcy.W.D.Mo.1983). The Court finds that the land to be surrendered has values as follows: To PCA 320 acres $780 per acre To Land Bank 1187 acres $425 per acre 24 acres $780 per acre 80 acres $500 per acre Both the 1187 acre and 80 acre tracts are adjusted to reflect size and nature of use. The adjustments make little impact on the amount of money necessary for debt service. Ill Creditors contend that, regardless of the surrender of the" }, { "docid": "5283368", "title": "", "text": "Cook, 38 B.R. 870, 872 (Bankr.D. Utah 1984); In re Beranek, 9 B.R. 864 (Bankr.D.Colo.1981); General Motors Acceptance Corp. v. Lum (In re Lum), 1 B.R. 186 (Bankr.E.D.Tenn.1979); 3 Collier on Bankruptcy 11 506.04, at 506-37 (15th ed. 1989). The parties do not dispute the lien requirement in this case. The issue to be determined, however, is whether “value” has been provided pursuant to the requirements of 11 U.S.C. § 1325(a)(5)(B)(ii). A. Wholesale vs. Retail Value Resolving the issue of value requires a proper interpretation of 11 U.S.C. § 506(a). In relevant part, this section provides as follows: An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. The legislative history to section 506(a) illustrates the flexibility the court is permitted in arriving at the proper method for determining value. The House Judiciary Committee’s comment to section 506(a) reads in part as follows: “Value” does not necessarily contemplate forced sale or liquidation value of the collateral; nor does it always imply a full going concern value. Courts will have to determine value on a case-by-case basis, taking into account the facts of each case and the competing interests in the case. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 356, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6312. It is clear from the legislative history that courts must use discretion in determining value on a case-by-case basis, depending on the purpose of the valuation and the proposed disposition or use of the collateral. The evidence established that two distinct markets" }, { "docid": "12403971", "title": "", "text": "it.” 10 CollieR On BaNKRUPTCY ¶ 6008.03 n. 3 (Lawrence P. King ed., 15th ed.1998). This court respectfully disagrees with that view. If motions for approval of redemption agreements were optional, Rule 6008 would be superfluous. If a dispute arose regarding redemption pursuant to § 722, the parties would simply proceed under Rule 9014 regarding contested matters. The better reasoned view of Rule 6008 is that it requires the filing of a motion seeking approval of the redemption agreement. The Debtors have not filed a motion for approval of the Agreement. Sears filed the Agreement and a Memorandum in Support of the. Agreement. However, Rule 6008 clearly requires that the motion be made by the debtor (or trustee or debtor in possession). Rule 6008 does not grant a creditor standing to bring the motion. Because the Agreement is not properly before the court on the Debtors’ motion, it must be disapproved. The legislative history of § 722 states that “[t]he debtor will be required to pay the fair market value of the goods or the amount of the claim if the claim is less.” S.Rep. No. 95-989, 95th Cong., 2d Sess. 95 (1978). The Debtors and Sears have agreed that the total value of the Property is $280.70. This value is derived from a depreciation table prepared by Sears and Deloitte & Touche with respect to many of the items sold by Sears. The methodology of the valuation is reasonable and here reflects that the Property is worth 36% of the original price. The Property was purchased on April 6,1997. The Agreement is dated June 11, 1998, and it appears that the agreed value is also supposed to reflect that date. As noted above, the court requires a hearing on motions for approval of redemption. The proper date for valuation of the Property is the date of the hearing on the redemption motion. In re King, 75 B.R. 287, 290 (Bankr. S.D.Ohio 1987); In re Pierce, 5 B.R. 346 (Bankr.D.Neb.1980). Based on Sears’ calculations, the Property is of a type that depreciates rapidly. Therefore, the Agreement should provide for an" }, { "docid": "11504773", "title": "", "text": "and one-half percent (8.5%) interest has been paid in full. The Plan presently provides for unsecured creditors to be paid 17% of their allowed claims. 11. The parties have stipulated that the National Automobile Dealers Association Official Used Car Guide, (“N.A.D.A. guide”) is the appropriate source for determining the relative value of the Vehicle in this case. CONCLUSIONS OF LAW I. VALUATION The Debtors have asked this Court to place a value on the Vehicle pursuant to § 506 for purposes of determining what portion of Chrysler Credit’s claim that will be treated as a secured claim and what portion will be treated as an unsecured claim in the Chapter 13 Plan. “Section 506(a) requires a bifurcation of a ‘partially secured’ or ‘un-dersecured’ claim into separate and independent secured claim and unsecured claim com-ponente” based upon the court’s valuation of the collateral and the creditor’s claim. 3 Collier on Bankruptcy ¶ 506[4] at p. 506-15 (15th ed. 1989). The legislative history of § 506(a) indicates that no fixed approach to valuation is correct. “Value” does not necessarily contemplate forced sale or liquidation value of the collateral; nor does it always imply a full going concern value. Courts will have to determine value on a case-by-ease basis, taking into account the facts of each case and the competing interests in the case. H.R.Rep. No. 595, 95th Cong., 1st Sess. 356 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 6312. The Senate Report further states that “[w]hile courts will have to determine value on a case-by-case basis, the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property.” S.Rep. No. 989, 95th Cong., 1st Sess. 68, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5854. The valuation process is not an exact science, and the court must allocate varying degrees of weight depending upon the court’s opinion of the credibility of that evidence. In re White, 93-75430, slip op. at 6 (Bankr.D.S.C. 8/30/94) (JBD). In their motions in this proceeding, the parties did" }, { "docid": "17279614", "title": "", "text": "is the creditor’s interest that is being valued and not the collateral itself, it should not make any difference whether the debtor is retaining the property, and costs of sale should still be deducted. Claeys, 81 B.R. at 990. The Claeys court declined to follow the cases whose interpretation of § 506(a) focused more on the second sentence of § 506(a), which provides that the value of the creditor’s interest in the property shall be determined in light of the purpose of the valuation and of the proposed disposition or use of the property. The legislative history suggests that the Claeys court misinterpreted § 506(a). The House Report states that: “Value” does not necessarily contemplate forced sale or liquidation value of the collateral; nor does it always imply a full going concern value. Courts will have to determine value on a case-by-case basis, taking into account the facts of each case and the competing interests in the case. H.R.Rep. No. 595, 95th Cong., 1st Sess. 356 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 6312. Similarly, the Senate Report states that: While courts will have to determine value on a case-by-case basis, the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property. This determination shall be made in conjunction with any hearing on such disposition or use of property or on a plan affecting a creditor’s interest. To illustrate, a valuation early in the case in a proceeding under sections 361-363 would not be binding upon the debtor or creditor at the time of confirmation of the plan. Sen.R. No. 989, 95th Cong., 2d Sess. 68 (1978), reprinted in U.S.Code Cong. & Admin.News 5787, 5854. The legislative history points out that value determinations under § 506(a) may differ depending upon what section of the Code they relate to. Similarly, in In re Snider Farms, Inc., 79 B.R. 801, 807-08 (Bankr.N.D.Ind.1987) the court noted: Accordingly, valuation for the different purposes of determining adequate protection under § 361, or to determine if" }, { "docid": "1139971", "title": "", "text": "(a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest.’ In Chapter 12 cases where the property will be held as a going-concern for the production of income to pay reinstated mortgages and subsequent debts, the value under 11 U.S.C. 506(a) should be based on a fair market value, not a liquidating value. In re Yoder, 32 B.R. 777 (Bankr.W.D.Pa.1983); In re Fursman Ranch, 38 B.R. 907, 909 (Bankr.W.D.Mo.1984): ‘This court is obliged to value collateral “in light of the purposes of the valuation and of the proposed disposi tion or use of such property, and in conjunction with any hearing — on the plan affecting such creditor’s interest”. The legislative history suggests that the valuation is to be made on a case by case basis, consistent with the time of the valuation. Senate Report No. 95-989, 95th Cong.2d Sess. (1978) 68, U.S.Code Cong. & Admin.News 1978, p. 5787, reported in App. 3 Collier on Bankruptcy, (15th Ed.); * * # ft See also In re Martin, 66 B.R. 921, 927 (Bankr.Mont.1986). The valuation for the purposes of 1225(a)(5)(B)(ii) is to be fixed ‘as of or close to the effective date of the Plan’. In re Cook, 38 B.R. 870 (Bankr.Utah 1984). In regard to value, In re Courtright, 57 B.R. 495, 496 (Bankr.Or.1986), states: ‘The court believes that" }, { "docid": "17279615", "title": "", "text": "6312. Similarly, the Senate Report states that: While courts will have to determine value on a case-by-case basis, the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property. This determination shall be made in conjunction with any hearing on such disposition or use of property or on a plan affecting a creditor’s interest. To illustrate, a valuation early in the case in a proceeding under sections 361-363 would not be binding upon the debtor or creditor at the time of confirmation of the plan. Sen.R. No. 989, 95th Cong., 2d Sess. 68 (1978), reprinted in U.S.Code Cong. & Admin.News 5787, 5854. The legislative history points out that value determinations under § 506(a) may differ depending upon what section of the Code they relate to. Similarly, in In re Snider Farms, Inc., 79 B.R. 801, 807-08 (Bankr.N.D.Ind.1987) the court noted: Accordingly, valuation for the different purposes of determining adequate protection under § 361, or to determine if the Debtor has met the “best interest of creditors” test under Chapters 11, 12, or 13, may require the Court to employ different valuation criteria than for “cram-down” purposes under § 1225(a)(5), § 1325(a)(5) or § 1129(b). That is, the focus of inquiry as to any value determination must be made on the interests that a particular Code section is designed to protect and valuation must be made with regard to those purposes. 3 Collier on Bankruptcy, § 506.04 (15th Ed.1986). Thus, the treatment of secured creditors and the valuation of property subject to liens in a “cramdown” hearing to confirm a plan over the objections of a secured creditor under Chapter 11, 12, and 13 must be distinguished from valuation for adequate protection purposes which covers the period between the date of the petition and the confirmation of the plan. If we were attempting to value FmHA’s interest in the property for adequate protection purposes, the possibility of forced liquidation would be assumed and a deduction for selling costs would be logical. However, we" }, { "docid": "11079565", "title": "", "text": "the lien. Under § 506(a), the amount of the allowed secured claim is the value of the creditor’s collateral. Section 506(a) further states that the value of the creditor’s collateral shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property. ...” The bankruptcy court adopted a flexible and pragmatic standard in valuing the collateral. Under such an approach a bankruptcy court is not bound by a unilateral and oftentimes artificial value as established in a repurchase agreement. This is in accord with the legislative history of § 722 where redemption is described as a “right of first refusal on a foreclosure sale of the property involved.” H.R.Rep.No.95-595, 95th Cong., 1st Sess. 127 (1977), reprinted in [1978] U.S.Code Cong. & Ad. News 5787, 6088. The record reveals no evidence indicating that the amount owing under the repurchase agreement reflects the fair market value of the mobile home or value which would be realized at its forced sale. Therefore the bankruptcy court properly concluded that the fair market value as opposed to the value established in the repurchase agreement determined the redemption value of the collateral. In re Beranek, 9 B.R. 864, 7 B.C.D. 522 (Bkrtcy.D.Colo.1981); Chrysler Credit Corp. v. Cooper, 7 B.R. 537, 7 B.C.D. 24 (Bkrtcy.N.D.Ga.1980). II. The second issue raised by the appellant is that the bankruptcy court erred when it allowed the debtor to redeem the mobile home by installment payments. Section 722 provides the debtor with the option of retaining certain tangible personal property by paying the creditor the “amount of the allowed secured claim of such holder that is secured by such lien.” 11 U.S.C. § 722. Although § 722 makes clear that the amount of the redemption payment is the “allowed secured claim” or current market value of the collateral, the section is silent as to the manner of payment. The bankruptcy court adopted the view that redemption by installment is not per se proscribed under § 722, but that the manner of redemption should be determined on a case by case basis. Under" }, { "docid": "10243276", "title": "", "text": "jurisdiction to conduct the requested valuation. Aside from the absence of jurisdiction to conduct a valuation in this matter, considerations of ripeness and judicial economy require that the debtors’ motion be denied. A valuation made for one purpose is not res judicata as to a later valuation in the same case for a different purpose. In re Ahlers, 794 F.2d 388 (8th Cir.1986), rev’d on other grounds, — U.S. -, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988). The Senate Committee Report discussing § 506(a) states that: While courts will have to determine value on a case-by-case basis, the subsection [506(a) ] makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property. This determination shall be made in conjunction with any hearing on such disposition or use of property or on a plan affecting the creditor’s interest. To illustrate, a valuation early in the case in a proceeding under sections 361-363 would not be binding upon the debtor or creditor at the time of confirmation of the plan. S.Rep. No. 95-989, 95th Cong., 2d Sess. 68 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5854 (emphasis added). An entry in the Congressional Record expands on this: “Additionally a determination of what portion of an allowed claim is secured and what portion is unsecured is binding only for the purpose for which the determination is made. Thus determinations for purposes of adequate protec tion is [sic] not binding for purposes of ‘cram down’ on confirmation in a case under chapter 11.” 124 Cong.Rec. H11095, Hlllll-12 (Sept. 28, 1978) (emphasis added). Other courts have recognized the futility of performing valuations where no purpose is served and a subsequent valuation is likely to supersede the current one. In re Grain Services, Inc., 47 B.R. 35, 37 (N.D. Miss.1984) (valuation of corporate assets would be premature where secured creditor did not consent to their sale); In re Palombo Farms of Colorado, Inc., 43 B.R. 709, 711 (D.Colo.1984) (where the stated purpose of valuation, surrender, is not supported by" } ]

[ { "docid": "14402721", "title": "", "text": "“analysis requires an end to the government regulation in order to measure the taking.” Bass, 35 Fed. Cl. at 617 n. 2 (citing Dufau v. United States, 22 Cl.Ct. 156 (1990) and 1902 Atlantic Ltd. v. United States, 26 Cl.Ct. 575 (1992)). DISCUSSION On appeal from the Court of Federal Claims, we review questions of law de novo and questions of fact for clear error. See Columbia Gas Sys., Inc. v. United States, 70 F.3d 1244, 1246 (Fed.Cir.1995). Whether a taking compensable under the Fifth Amendment has occurred is a question of law based on factual underpinnings. See Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978) (establishing legal criteria to guide the “essentially ad hoc, factual inquiries”); see also Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1030-31, 112 S.Ct. 2886, 2901-02, 120 L.Ed.2d 798 (1992); Branch v. United States, 69 F.3d 1571,1579,1583 (Fed. Cir.1995). Whether a taking is permanent is a question of law. See Yuba Natural Resources, Inc. v. United States, 821 F.2d 638, 640 (Fed.Cir.1987). Government regulation will effect a taking under the Fifth Amendment “where regulation denies all economically beneficial or productive use” of one’s property. See Lucas, 505 U.S. at 1015, 112 S.Ct. at'2893 (1992). The proper measure of just compensation is that which will put the owner “in as good a position pecuniarily as he would have occupied if his property had not been taken.” Yuba, 821 F.2d at 640 (quoting United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279-80, 87 L.Ed. 336 (1943)). The just compensation for a permanent taking is generally the fair market value of the property taken, whereas the recovery for a temporary taking is generally the rental value of the property. See id. at 641. The government only contests the trial court’s determination that its actions constituted a permanent taking. The government argues that, instead, the government’s steps in evaluating Bass’ lease constitute at most a temporary taking because, at some definite point in the near future, the government will make a" } ]

[ { "docid": "479046", "title": "", "text": "court entered an order of summary judgment of non-infringement for the two illumination source devices, based upon its claim construction decision. See Order Granting Summary Judgment. With regard to literal infringement, the trial court found that the ICOS products containing two illumination sources did not literally infringe the claims as construed. Id. Moreover, the trial court found that the ICOS products containing two illumination sources did not infringe the patents-in-suit under the doctrine of equivalents because “a product that uses one illumination source is significantly different than a device using two illumination sources.” Id. at 3. Scanner timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). This opinion follows the court’s review of the record and consideration of the parties’ oral argument, heard on February 6, 2004. I. We review de novo a district court’s grant of summary judgment. Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). Summary judgment is appropriate if, drawing all factual inferences in favor of the non-movant, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Analysis of infringement involves two steps. Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 988 (Fed.Cir.1999). First, the trial court determines the scope and meaning of the asserted claims. Markman v. Westview Instruments, Inc., 517 U.S. 370, 372-74, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The trial court’s claim construction is an issue of law reviewed without deference. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc). Second, the claims as construed by the court are compared to the allegedly infringing device. Johnson Worldwide, 175 F.3d at 988. We affirm a district court’s grant of summary judgment of non-infringement only if, “after viewing the alleged facts in the light most favorable to the non-mov-ant, there is no genuine issue whether the accused device is encompassed by the claims.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298," }, { "docid": "14397286", "title": "", "text": "actionable because the grazing permits do not constitute com-pensable “property” under the Fifth Amendment, and that the trespass on Alves’ private property was not a “physical” taking because a permanent physical occupation had not been authorized by the government. While the court did not expressly decide whether the government’s actions constituted a “regulatory” taking, it did set forth the three-factored regulatory taking test, see infra, and presumably found no regulatory taking either. With regard to the breach of contract claim, the court determined that the grazing permits were revocable privileges, not contracts. Accordingly, the court granted the government’s motion for summary judgment and dismissed Alves’ claims. Alves appeals to this court, arguing that the trial court erred in granting the government’s summary judgment motion. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (1994). DISCUSSION We review a grant of summary judgment by the Court of Federal Claims de novo. Foley Co. v. United States, 11 F.3d 1032, 1034 (Fed.Cir.1993). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). Whether a taking compensable under the Fifth Amendment has occurred is a question of law based on factual underpinnings. Bass Enter. Prod. Co. v. United States, 133 F.3d 893, 895 (Fed. Cir.1998) (citations omitted). Contract interpretation is a question of law that we review de novo. Burnside-Ott Aviation Training Ctr. v. Dalton, 107 F.3d 854, 860 (Fed.Cir. 1997). A. The Takings Claim Alves argues that the court erred by failing to recognize that it is the taking of his grazing “preference,” not his grazing “permit” that is actionable. Alves explains that his grazing preference is a governmentally adjudicated right attaching to his fee simple (i.e., base) property that gives him a priority position in the procurement of grazing permits on adjacent public lands. Thus, while Alves concedes that the grazing permits are freely revocable by the government without compensation under 43 U.S.C. § 315b" }, { "docid": "16220937", "title": "", "text": "erred in accepting the government’s assertion that no expectation of the continuation of the prepayment term in a housing program participant’s mortgage contract could be reasonable in light of the applicable regulation. “[K]nowledge of the Government’s role in their chosen business venture,” Alexander Investment, 51 Fed. Cl. at 110, we hold, is not enough to destroy the reasonableness of the expectation of this right to prepay that was expressly granted both by contract and by regulation when the Owners entered the programs. Where a trial court erred in granting summary judgment, ordinarily we would have to remand the case. Here, however, the reasonableness of the Model Plaintiffs’ expectations can be confidently adjudicated without a remand because of the very specific factual findings following a trial on a contract claim about the two housing programs, the text of the relevant documents, regulations, and legislation, and the role of HUD in approving and endorsing the mortgage contracts and the riders therefor which contain the express prepayment right. We, therefore, hold that ELIHPA and LIHPRHA frustrated the Model Plaintiffs’ reasonable investment-backed expectations that they would be entitled to prepay. We thus hold that all three of the Penn Central factors individually and together establish that the Model Plaintiffs are entitled to compensation without need for further fact-finding. CONCLUSION We vacate the trial court’s sua sponte grant of judgment in favor of the government. Contrary to the trial court, we hold that all of the Owners had vested property interests under the Fifth Amendment in their contractual and regulatory rights to post-twentieth-year prepayment and under real property law to repossess. These property interests were expressly and deliberately abrogated by ELIHPA and LIHPRHA. Unlike the trial court we see no basis in takings case law for holding that as a matter of law ELIHPA and LIHPRHA could not effect a compensable taking under Penn Central. In addition, because whether or not a taking has occurred is a question of law based on factual underpinnings, Bass Enters., 133 F.3d at 895, and because we have findings of fact by the trial court adequate for a Penn" }, { "docid": "20643567", "title": "", "text": "of the ’119 application constituted § 102(b) prior art, Bruckelmyer filed a stipulation in the court conceding that those figures rendered the claims of the patents in suit invalid. Final Decision, slip op. at 6. In doing so, Bruckelmyer removed from dispute any question of fact as to whether those figures were enabling to a person of ordinary skill in the pertinent art. Ground Heaters filed a renewed motion for summary judgment of invalidity, which the court granted on May 13, 2005. Id. Bruckelmyer timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION We review a district court’s grant of summary judgment de novo, reapplying the same standard used by the district court. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). “Whether an anticipatory document qualifies as a ‘printed publication’ under § 102 is a legal conclusion based on underlying factual determinations.” Cooper Cameron Corp. v. Kvaerner Oilfield Prods., 291 F.3d 1317, 1321 (Fed.Cir.2002). Where there is no disputed issue of material fact, however, the question whether a particular reference is a “printed publication” is one of law, which we review de novo. In re Cronyn, 890 F.2d 1158, 1159 (Fed.Cir.1989). The single legal issue in this appeal is whether figures 3 and 4 of the T19 application were “printed publications” under 35 U.S.C. § 102(b). Bruckelmyer argues that the district court erred in concluding that they were. For a reference to be a “printed publication,” Bruckelmyer asserts, it must be “publicly accessible,” as that term has been used in our prior decisions. Bruckelmyer contends that a patent application located in a foreign patent office, e.g., the T19 application, is not “publicly accessible” just because it is laid open for inspection by the general public during the relevant prior art time frame. Relying on our decisions in In re Klopfenstein, 380 F.3d 1345, 1350 (Fed.Cir.2004), and In re Cronyn, 890 F.2d" }, { "docid": "16927736", "title": "", "text": "contention that the EST bat also literally infringed claim 15. The district court ruled on these motions in DeMarini II. The district court found that Worth failed to satisfy its burden of proof that claim 18 was invalid for indefiniteness and thus denied that summary judgment motion. DeMarini II, slip op. at 5. In addressing the motions regarding infringement, the district court noted sua sponte that it needed to construe the term “large-diameter impact portion” as used in claim 15, which term was not in issue at the time of the Markman hearing. After eonstru- ing this term, the district court concluded that the Worth EST bat neither infringed claim 15 literally nor infringed claims 1, 2, 15, and 18 under the doctrine of equivalents. Id. at 6-14. The district court then granted Worth’s summary judgment motion of non-infringement and denied De-Marini’s summary judgment motion of infringement. Id. at 14. DeMarini timely appealed the judgment regarding infringement and Worth cross-appealed the district court’s construction of the claim terms “gap” and “interference fit.” We have jurisdiction under 28 U.S.C. § 1295(a)(1) (1994). DISCUSSION Standard of Review We review a district court’s grant of summary judgment de novo. See Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315, 47 USPQ2d 1272, 1275 (Fed.Cir.1998). However, in reviewing a denial of a motion for summary judgment, we give deference to the trial court, and “will not disturb the trial court’s denial of summary judgment unless we find that the court has indeed abused its discretion.” Suntiger, Inc. v. Scientific Research Funding Group, 189 F.3d 1327, 1333, 51 USPQ2d 1811, 1815 (Fed.Cir.1999). When both parties move for summary judgment, the court must evaluate each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. See McKay v. United States, 199 F.3d 1376, 1380 (Fed.Cir.1999). Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ. P. 56(c). “In determining whether there is a genuine issue of material" }, { "docid": "17231567", "title": "", "text": "responsible.” Id. Accordingly, having found that Air Pegasus voluntarily chose to operate a business in a highly regulated industry, and having further found that the government has a pre-existing servitude over the navigable airspace, the Court of Federal Claims held that “[n]o [private] property right exists to public navigable airspace,” and that “no property right over the navigable airspace above the leased area at the South Capitol Street Heliport [could therefore] attach to the lessee, Air Pegasus.” Id. As a result, the court concluded that “although the FAA’s regulatory activity may have had an adverse impact on [Air Pegasus’s] heliport business,” there was not a taking of any cognizable property interest of Air Pegasus. Id. The court therefore granted summary judgment to the government and dismissed Air Pegasus’s complaint. Id. Air Pegasus timely appealed the final judgment of the Court of Federal Claims. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION I. We review the Court of Federal Claims’ decision to grant summary judgment de novo. Sparton Corp. v. United States, 399 F.3d 1321, 1322-23 (Fed.Cir.2005). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. Cl. R. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The issue of whether a taking has occurred is a question of law based on factual underpinnings. Stearns Co. v. United States, 396 F.3d 1354, 1357 (Fed.Cir.2005); Maritrans, Inc. v. United States, 342 F.3d 1344, 1350-51 (Fed.Cir.2003); Washoe County, Nev. v. United States, 319 F.3d 1320, 1325 (Fed.Cir.2003). In this case, the material facts are undisputed and so we are presented with a pure question of law. The Takings Clause of the Fifth Amendment of the U.S. Constitution states that “private property [shall not] be taken for public use, without just compensation.” U.S. Const, amend. V. The purpose of the Takings Clause is to prevent “Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be" }, { "docid": "14626232", "title": "", "text": "permit no more than “about 0.5% silicon” and therefore granted summary judgment of noninfringement. AK Steel, 234 F.Supp.2d at 720. The judge also adopted the special master’s thorough construction of claims 1, 3, 5, and 7 of the '549 patent as encompassing Type 1 aluminum and his conclusion that the patent did not enable one skilled in the art to practice the invention with Type 1 aluminum, as required by 35 U.S.C. § 112, ¶ 1 .Id. at 718. The court therefore granted summary judgment of invalidity with respect to those '549 patent claims. Id. at 719. AK Steel timely appealed and Sollac timely cross-appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION We review a district court’s grant of a motion for summary judgment de novo. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, in deciding whether summary judgment is warranted, the court “must view the evidence presented through the prism of the substantive evidentiary burden” that would inhere at trial. Id. at 245, 106 S.Ct. 2505. A determination of patent infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... [Second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc) (citations omitted). Step one, claim construction, is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456. Step two, comparison of a claim to the accused device, requires a" }, { "docid": "7798944", "title": "", "text": "of the ’899 patent, but did not rule on a related counterclaim for a declaratory judgment of invalidity for obviousness. For a detailed account of the facts, the reader is referred to the district court opinion. Only those facts material to our decision are discussed in this opinion. GE timely appealed from all aspects of that judgment in the instant case. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994). DISCUSSION We review a district court’s grant of summary judgment de novo. See Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315, 47 USPQ2d 1272, 1275 (Fed.Cir.1998). Summary judgment is properly granted when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In determining whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the party opposing the motion, with doubts resolved in favor of the opponent.” Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1307, 46 USPQ2d 1752, 1755 (Fed.Cir.1998). Infringement is a factual inquiry. See Baxter Healthcare Corp. v. Spectramed, Inc., 49 F.3d 1575, 1582, 34 USPQ2d 1120, 1126 (Fed.Cir.1995) (“[I]nfringement ... is a question of fact.”). Invalidity for anticipation, likewise, is a factual inquiry. See Hoover Group, Inc. v. Custom Metalcraft, Inc., 66 F.3d 299, 302, 36 USPQ2d 1101, 1103 (Fed.Cir.1995) (“Anticipation is a question of fact.”). Despite being issues of fact, infringement and anticipation may still be decided on summary judgment. To review the several summary judgments of no infringement and of invalidity for anticipation, however, we need to determine de novo whether the evidence in the record raises any genuine disputes about material facts. An evidentiary dispute is genuine if a jury could decide the issue either way, and its verdict would survive a motion for judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[Sjummary judgment will not lie if the dispute about a material" }, { "docid": "16220863", "title": "", "text": "(holding that the regulatory takings claims of the plaintiffs’ cases were ripe for adjudication), the Court of Federal Claims judge ordered the parties to advise him whether judgment should be entered for the government on the basis of a decision in another case. In Alexander Investment, a case with similarly-situated plaintiffs, the same trial judge, Judge Hodges, had ruled that the plaintiffs had no property interests that could have been taken by the government because (1) the contractual prepayment rights in the mortgage trust notes were not vested as of the time of the alleged taking, and (2) HUD had reserved the right to amend its regulations. Id. He also ruled in the alternative, that even if the plaintiffs had rights that amounted to property interests, a compensable regulatory taking had not occurred, as a matter of law under Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Alexander Investment, 51 Fed. Cl. at 108-10. More specifically, the trial court’s determination that the plaintiffs had no property rights relied heavily on the assumption that the plaintiffs’ early-1970’s contract prepayment rights had not vested when ELIHPA and LIHPRHA were enacted in 1987 and 1990 (apparently because the initial twenty-year period had not yet expired) and the fact that HUD’s regulations were explicitly amendable. Id. at 110. In addition, the trial court held that the plaintiffs did not have a property interest in their contractual rights to prepay their mortgages because their rights and obligations arose only as a consequence of a regulatory scheme established by Congress that HUD (and ’ Congress) always retained the right to amend. Id. In response to the judge’s order, the Owners conceded that, except as to the question of economic impact, the legal conclusions expressed by the court in Alexander Investment would mandate judgment for the government in this case. Based on these submissions, the judge entered summary judgment for the government without further analysis. (No summary judgment motion was filed by either party, but rather, the court acted sua sponte.) This appeal reviews that grant of" }, { "docid": "23326452", "title": "", "text": "over material facts for trial. The district court granted the defendants’ motion for summary judgment of non-infringement, thereby holding the defendants not hable for either direct or indirect infringement. Dynacore appealed. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION A. Standard of Review This court reviews the grant of summary judgment de novo, Genzyme Corp. v. Transkaryotic Therapies, Inc., 346 F.3d 1094, 1096 (Fed.Cir.2003); Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998); Blouin v. Spitzer, 356 F.3d 348, 356 (2nd Cir.2004), construing all facts in the light most favorable to the non-movant, Id.; Mazzari v. Rogan, 323 F.3d 1000, 1005 (Fed.Cir.2003). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A determination of patent infringement requires a two-step analysis. The court must first interpret the claims to determine their scope and meaning. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc). It must then compare the properly construed claims to the allegedly infringing device. Id. The first step, claim construction, is a matter of law that we review de novo. Id. at 1451. The second step is a factual question that we review following a trial for clear error. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). When conducting a de novo review of a district court’s grant of summary judgment, however, we construe the facts in the light most favorable to the non-movant. Mazzari, 323 F.3d at 1005. To prove infringement, the patentee must show that the accused device meets each claim limitation, either literally or under the doctrine of equivalents. Deering, 347 F.3d at 1324. See also Cole v. Kimberly-Clark Corp., 102 F.3d 524, 532 (Fed.Cir.1996). In order to prove vicarious liability for indirect infringement, a plaintiff who demonstrates direct infringement must also establish that the defendant possessed the requisite knowledge or intent to be" }, { "docid": "16202870", "title": "", "text": "are claiming, and the prepayment prohibition could hardly effect a taking of property rights which the plaintiffs did not possess. 51 Fed. Cl. at 158. The Owners timely appealed the Court of Federal Claims’s decision and we have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(3). II. DISCUSSION We review the Court of Federal Claims’s grant of summary judgment de novo. Berkley v. United States, 287 F.3d 1076, 1083 (Fed.Cir.2002). ‘“Whether a taking compensable under the Fifth Amendment has occurred is a question of law based on factual underpinnings.” Bass Enters. Prod. Co. v. United States, 133 F.3d 893, 895 (Fed.Cir.1998) (citing Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)). On appeal, Appellants advance two distinct legal theories — one premised upon contract law, the other premised upon regulatory takings law. A. Contract As an initial matter, to succeed under either theory, Appellants must prove that the United States waived its sovereign immunity, for “[t]he United States, as sovereign, is immune from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Waivers of sovereign immunity are construed narrowly. United States v. Nordic Vill., Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). The United States has waived immunity from suit under the Tucker Act in actions brought in the Court of Federal Claims “founded either upon the Constitution, or any act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2000). The Court of Federal Claims thus has jurisdiction over claims based on “any express or implied contract with the United States.” Id. This court has consistently held that for the government to be sued on a contract pursuant to the Tucker Act, there must be privity of contract between the plaintiff and the United States. See, e.g., Cienega IV, 194 F.3d at 1239" }, { "docid": "17226251", "title": "", "text": "was merely a collateral interest incident to the Members’ ownership of farm land. Peanut Quota Holders Ass’n, 60 Fed.Cl. at 529. The trial court concluded that “[b]e-cause Congress has the right to modify or terminate a federal program, the benefits of such a program do not constitute a property interest protected by the Fifth Amendment.” Id. Accordingly, the trial court awarded summary judgment in favor of the government. The Members appeal the trial court’s decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION A. Standard of Review Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed. Cl. R. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review a grant of summary judgment de novo to determine whether the trial court correctly applied this standard. See Cienega Gardens v. United States, 265 F.3d 1237, 1244 (Fed.Cir.2001). Whether a compensable taking has occurred is a question of law based on factual underpinnings. Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.Cir.2001). To evaluate whether a governmental action effects a taking of private property without just compensation, this court must first determine whether the claimant has established a property interest for purposes of the Fifth Amendment. Conti v. United States, 291 F.3d 1334, 1339 (Fed.Cir.2002). Once a property right has been established, the court must then determine whether a part or a whole of that interest has been appropriated by the government for the benefit of the public. Id. While a taking often occurs as a result of a physical invasion or confiscation, the Supreme Court has long recognized that “if a regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). The issue in this case is whether, in amending the statute that created the peanut quota, the government effected a compensable taking of a property interest under the Fifth Amendment. B. Definition of" }, { "docid": "16202869", "title": "", "text": "unfettered control of their housing projects after the 20-year anniversary dates of their mortgage note endorsements by HUD.... [F]ederal regulations in' effect during the 1970s did allow owners in the NHA’s section 236 program to prepay their mortgage notes after 20 years without HUD approval. The prepayment terms in the mortgage notes tracked these regulations. However, as the Federal Circuit found in Cienega Gardens, 194 F.3d at 1244, the regulations [24 C.F.R. § 236.249] expressly stated that they were subject to amendment by HUD “at any time.” Thus, when [plaintiffs] entered into the section 236 program they knew, or should, have known, that the regulations governing the prepayment of their mortgage notes could be changed in a manner that might restrict the owners’ option to prepay after 20 years.... In other words, the plaintiffs’ expectations (or hopes) of converting their projects to conventional, market-rate rental properties after 20 years did not inhere in their ownership of the properties. When LIHPRHA was enacted, therefore, the plaintiffs did not even hold the state law property rights they are claiming, and the prepayment prohibition could hardly effect a taking of property rights which the plaintiffs did not possess. 51 Fed. Cl. at 158. The Owners timely appealed the Court of Federal Claims’s decision and we have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(3). II. DISCUSSION We review the Court of Federal Claims’s grant of summary judgment de novo. Berkley v. United States, 287 F.3d 1076, 1083 (Fed.Cir.2002). ‘“Whether a taking compensable under the Fifth Amendment has occurred is a question of law based on factual underpinnings.” Bass Enters. Prod. Co. v. United States, 133 F.3d 893, 895 (Fed.Cir.1998) (citing Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)). On appeal, Appellants advance two distinct legal theories — one premised upon contract law, the other premised upon regulatory takings law. A. Contract As an initial matter, to succeed under either theory, Appellants must prove that the United States waived its sovereign immunity, for “[t]he United States, as sovereign, is immune" }, { "docid": "1697321", "title": "", "text": "right to pre-pay their mortgages after the twenty year deadline agreed to at the inception of HUD’s and appellants’ agreements; and (3) if so, then whether enactment of the LIHPRHA constituted a compensable taking of the appellants’ vested property interest in their right to pre-pay their mortgages after twenty years, in violation of the Fifth Amendment. ■Consideration of these issues is premature. For review, this court only has the dismissal before it. The record on appeal does not contain a full factual record on the question of “administrative futility,” which in turn controls the ripeness question. Until “ripeness” is determined, this court cannot reach the remaining issues. However, on the question of ripeness, Greenbrier does not control the outcome of this case. Rather, in making a determination, this court must also take Ciénega II into account. In addition, in this case, the Court of Federal Claims dismissed appellants’ complaints sua sponte — as opposed to following the grant of a motion for summary judgment or a judgment. Moreover, the dismissals came on the heels of numerous stays of all proceedings. In that procedural posture, these appellants have not had the opportunity to develop facts relative to futility and ripeness. Thus, this court remands to permit development of the requisite facts. III. This court reviews Court of Federal Claims’ decisions de novo for errors of law, and for clear error on findings of fact. Yancey v. United States, 915 F.2d 1534, 1537 (Fed.Cir.1990). This court also reviews the legal determination of a dismissal of a case for lack of subject matter jurisdiction without deference. Venture Coal Sales Co. v. United States, 370 F.3d 1102, 1104 (Fed.Cir.2004); Shelden v. United States, 7 F.3d 1022, 1026 (Fed.Cir.1993). In addition, this court reviews de novo whether the Court of Federal Claims properly dismissed a complaint for failure to state a claim. Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed. Cir.2002) (citing Dehne v. United States, 970 F.2d 890, 892 (Fed.Cir.1992)). “[I]n reviewing a dismissal for failure to state a claim, we must assume all well-pled factual allegations are true and indulge" }, { "docid": "23705401", "title": "", "text": "plots and the flow pattern required under the court’s claim construction. The district court granted summary judgment in favor of Vaughan and mooted Vaughan’s counterclaims for invalidity and inequitable conduct. Both parties timely appealed. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION A. Standard of Review This court reviews the grant of summary judgment de novo. Genzyme Corp. v. Transkaryotic Therapies, Inc., 346 F.3d 1094, 1096 (Fed.Cir.2003); Pickholtz v. Rainbow Techs., Inc., 284 F.3d 1365, 1371 (Fed.Cir.2002); Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). Summary judgment is appropriate when there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A determination of patent infringement requires a two-step analysis. The court must first interpret the claim and determine the scope and the meaning of the asserted patent claims, and then compare the properly construed claims to the allegedly infringing device. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998). The first step, claim construction, is a matter of law that we review de novo. Id. at 1451. The second step is a factual question that we review following a trial for clear error. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). When conducting a de novo review of a district court’s grant of summary judgment, however, we construe the facts in the light most favorable to the non-movant. Mazzari v. Rogan, 323 F.3d 1000, 1005 (Fed.Cir.2003). To prove infringement, the patentee must show that the accused device meets each claim limitation, either literally or under the doctrine of equivalents. Deering Precision Instruments, L.L.C. v. Vector Distrib. Sys., Inc., 347 F.3d 1314, 1324 (Fed.Cir. 2003). We review the district court’s decision to moot Vaughan’s counterclaims for abuse of discretion. Phonometrics, Inc. v. N. Tele-com, Inc., 133 F.3d 1459, 1468 (Fed.Cir. 1998). B. Claim Construction Courts construe claims by considering the evidence necessary to resolve disputes about claim" }, { "docid": "6500984", "title": "", "text": "the two plugs and thus did not support claims having the workover port in a location other than between the two plugs. Id. at 23. As Cooper conceded that the challenged claims in the '119 patent would be invalid if they did not relate back to the June 1, 1992 filing date, the court concluded that claims 1, 3, 6, 7, 14, 16, 24, 29, and 31 of that patent were invalid. Id. at 24. Cooper timely appealed to this court; we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review a district court’s grant of a motion for summary judgment de novo. Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315, 47 USPQ2d 1272, 1275 (Fed.Cir.1998). A determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353, 48 USPQ2d 1674, 1676 (Fed.Cir.1998). Infringement under the doctrine of equiva- lente may be limited by two legal doctrines relevant to this appeal: prosecution history estoppel and the “all-elements or, more preferably, the all-limitations rule.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 39 n. 8, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Whether claims are properly supported by the written description is a question of fact. Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563, 19 USPQ2d 1111, 1116 (Fed.Cir.1991). Whether an asserted anticipatory document qualifies as a “printed publication” under § 102 is a legal conclusion based on underlying factual determinations. N. Telecom, Inc. v. Datapoint Corp., 908 F.2d 931, 936," }, { "docid": "16220864", "title": "", "text": "property rights relied heavily on the assumption that the plaintiffs’ early-1970’s contract prepayment rights had not vested when ELIHPA and LIHPRHA were enacted in 1987 and 1990 (apparently because the initial twenty-year period had not yet expired) and the fact that HUD’s regulations were explicitly amendable. Id. at 110. In addition, the trial court held that the plaintiffs did not have a property interest in their contractual rights to prepay their mortgages because their rights and obligations arose only as a consequence of a regulatory scheme established by Congress that HUD (and ’ Congress) always retained the right to amend. Id. In response to the judge’s order, the Owners conceded that, except as to the question of economic impact, the legal conclusions expressed by the court in Alexander Investment would mandate judgment for the government in this case. Based on these submissions, the judge entered summary judgment for the government without further analysis. (No summary judgment motion was filed by either party, but rather, the court acted sua sponte.) This appeal reviews that grant of summary judgment. For additional treatment of the background facts of this case and the legislation involved, see Cienega IV, 194 F.3d 1231, and Cienega VI, 265 F.3d 1237. DISCUSSION Ordinarily this court examines the Court of Federal Claims’ findings of fact for clear error and reviews legal conclusions de novo. Bass Enters. Prod. Co. v. United States, 133 F.3d 893, 895 (Fed.Cir.1998). Whether or not a taking has occurred is a question of law based on factual underpinnings. Id. Summary judgment, however, is, of course, in all respects reviewed de novo. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(3). There are two principal questions in this appeal. First: did a property interest vest in the Owners, which was then taken by the enactment of ELIHPA and LIHPRHA? For any Fifth Amendment takings claim, the complaining party must show it owned a distinct property interest at the time it was allegedly taken, even for regulatory takings. See, e.g., Wyatt v." }, { "docid": "9790888", "title": "", "text": "timely appealed the Court of Federal Claims’ decisions on both liability and damages. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). ANALYSIS I. Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed. Cl. R. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review a grant of summary judgment by the Court of Federal Claims de novo to determine whether it correctly applied this standard. See Cienega Gardens v. United States, 265 F.3d 1237, 1244 (Fed.Cir.2001). We affirm if, when the facts are viewed in the light most favorable to the nonmoving party and doubts are resolved against the movant, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Helifix, Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed.Cir.2000). Whether a compensable taking has occurred is a question of law based on factual underpinnings. Maritrans Inc. v. United States, 342 F.3d 1344, 1350-51 (Fed.Cir.2003) (citing Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.Cir.2001)). As noted above, in this case, the pertinent facts are not in dispute. In reviewing a final decision of the Court of Federal Claims after a trial, we review legal conclusions de novo, and we review factual findings under the clearly erroneous standard. Id. (citing Glendale Fed. Bank, FSB v. United States, 239 F.3d 1374, 1379 (Fed.Cir.2001)). “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.” Id. (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). The government challenges both the grant of summary judgment on liability and the award of damages to American Pelagic. Because our ruling on the issue of liability disposes of the case, we do not reach the government’s challenge to the award of damages." }, { "docid": "16220865", "title": "", "text": "summary judgment. For additional treatment of the background facts of this case and the legislation involved, see Cienega IV, 194 F.3d 1231, and Cienega VI, 265 F.3d 1237. DISCUSSION Ordinarily this court examines the Court of Federal Claims’ findings of fact for clear error and reviews legal conclusions de novo. Bass Enters. Prod. Co. v. United States, 133 F.3d 893, 895 (Fed.Cir.1998). Whether or not a taking has occurred is a question of law based on factual underpinnings. Id. Summary judgment, however, is, of course, in all respects reviewed de novo. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(3). There are two principal questions in this appeal. First: did a property interest vest in the Owners, which was then taken by the enactment of ELIHPA and LIHPRHA? For any Fifth Amendment takings claim, the complaining party must show it owned a distinct property interest at the time it was allegedly taken, even for regulatory takings. See, e.g., Wyatt v. United States, 271 F.3d 1090, 1097 (Fed.Cir.2001) (holding that “the existence of a valid property interest is necessary in all takings claims”). Second: if plaintiffs owned such a vested property interest, did the regulatory restrictions in the new statutes go “too far” in constraining them, thereby entitling the plaintiffs to compensation? For this inquiry, the complaining party must offer evidence to show that the government has improperly shifted a public burden to a small class of private parties. See Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960) (“The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”). The Court of Federal Claims in Alexander Investment answered both of these principal questions in the negative. We hold that the Court of Federal Claims erred in granting summary judgment in this case because" }, { "docid": "9477365", "title": "", "text": "functions set forth in the claims was moot in light of its indefiniteness ruling with respect to claims 3-11. Id. at 428 n. 5. Although judgment was entered in Canon’s favor on all claims, the court’s holding in its Memorandum Order of August 21, 2009 regarding the improper mixing of method and apparatus claims only applied to claims 3-11 of the '236 patent and did not address claims 1 and 2 of the '236 patent. On September 2, 2009, Canon filed a motion pursuant to Federal Rule of Civil Procedure 59(e) to amend the August 21, 2009 order to address claims 1 and 2. The district court granted Canon’s motion, replacing the second sentence in footnote 5 of the August 21, 2009 order with the following sentence: “The Court also holds that each of claims 1-11 in the '236 patent is invalid as indefinite for failing to disclose the necessary algorithms for the reasons set forth in its order of June 17, 2009.” J.A. 1. Rembrandt timely appealed to this court. We have jurisdiction over Rembrandt’s appeal pursuant to 28 U.S.C. § 1295(a)(1). Discussion Contract interpretation is a question of law reviewed de novo. Lucent Techs., Inc. v. Gateway, Inc., 543 F.3d 710, 717 (Fed.Cir.2008). The district court’s grant of summary judgment is also reviewed de novo. Koninklijke Philips Elecs. N.V. v. Cardiac Sci. Operating Co., 590 F.3d 1326, 1332 (Fed.Cir.2010). Summary judgment is appropriate when, drawing all justifiable inferences in favor of the non-moving party, there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This court has stated that “[i]n determining whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the party opposing the motion, with doubts resolved in favor of the opponent.” Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). When a motion for summary judgment is properly supported by documentary and" } ]

[ { "docid": "2726301", "title": "", "text": "reason why condition did not overly burden defendant’s liberty). In sum, the special condition on Roy’s supervised release serves a permitted goal in a reasonable manner, and the district court did not abuse its discretion in imposing it. III. For the reasons stated above, the district court’s decision is affirmed. . Roy had been convicted in 1998 of unlawful sexual contact, a misdemeanor. The victim was a 14-year-old girl who had been babysitting Roy's two nephews. This conviction itself is not at issue in this case, but Roy's past criminal behavior is relevant to his current mental health treatment and his potential for recidivism, both of which are implicated in this appeal. . This first revocation is not at issue in this appeal. . Efland, a clinical social worker, testified that one concern in treating sex offenders is that the offender will, consciously or unconsciously, identify children as potential new victims and then build relationships with them. He stated, \"[Roy] acknowledged that he was having contact with [Woodward's] children and that he was spending the night at her home.... I was concerned if [Woodward] would know how to protect the children, if she was taking the risk seriously enough.” .Efland testified, \"[P]art of the understanding that I have with people working with me in sex offender treatment is that they will not have contact with children under the age of 18 without getting permission from myself and the probation officer.... I was concerned whether this was some sort of movement toward sexually abusing these children. ... [Roy] didn’t give me the impression that he understood how important honesty was and how related that is to keeping himself safe.... [I terminated the treatment because] I had no reason to believe that he all of a sudden would start being honest.” . These factors are: (A) the defendant's history and characteristics and the nature and circumstances of his offense; (B) the need for adequate deterrence of future criminal conduct; (C) the need to protect the public from further crimes by the defendant; and (D) effective provision of educational or vocational treatment, medical" } ]

[ { "docid": "5144210", "title": "", "text": "of knowingly possessing a CD-ROM that contained more than one image of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court denied Riley’s motions to exclude certain evidence, including the uncharged images of child pornography found on Riley’s computer, and to suppress statements made during the inspectors’ search of his residence. The jury returned a guilty verdict after a two-day trial. After receiving a presentence report, the district court imposed a 46-month prison sentence and a three-year term of supervised release, accompanied by special conditions recommended by the probation officer. These included, among others, several restrictions on computer use, including a blanket prohibition on the use of a computer to access “any material that relates to minors.” Riley timely appeals his conviction, his prison sentence, and the conditions imposed on supervised release. For the reasons stated in the accompanying memorandum disposition, we affirm the district court’s evidentiary rulings and Riley’s conviction and hold that the prison sentence was reasonable. In the memorandum disposition, we also affirm most of the conditions of supervised release. For the reasons that follow, however, we vacate the condition that prohibits Riley from using a computer to access “any material that relates to minors.” II. Pursuant to 18 U.S.C. § 3583(d), a district court has discretion to impose special conditions of supervised release, so long as the conditions: are reasonably related to the goals of deterrence, protection of the public, or rehabilitation of the offender; involve no greater deprivation of liberty than necessary to achieve those goals; and are consistent with any pertinent policy statements issued by the Sentencing Commission. See United States v. Weber, 451 F.3d 552, 557-58 (9th Cir.2006) (citing 18 U.S.C. §§ 3553(a)(2), 3583(d)). “[A] supervised release condition need not relate to the offense of conviction, as long as it satisfies one of the above goals.” Id. at 558. The government “shoulders the burden of proving that a particular condition of supervised release involves no greater deprivation of liberty than is reasonably necessary to serve the goals of supervised release.” Id. at 559. We review the district court’s imposition of" }, { "docid": "167941", "title": "", "text": "either a sexual offense or an offense involving computer use. Understandably, district courts generally have broad discretion in imposing special conditions of supervised release. United States v. Miller, 665 F.3d 114, 132 (5th Cir.2011). This broad discretion, however, must comport with the limits provided in 18 U.S.C. § 3583(d), which provides, inter alia, that supervised-release conditions must be “reasonably related” to the following factors: the nature and circumstances of the offense; affording adequate deterrence to criminal conduct; the protection of the public from further crimes by defendant; and providing defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. See also 18 U.S.C. § 3553(a) (sentencing factors considered by district courts). In addition, special conditions must: “involve[ ] no greater deprivation of liberty than is reasonably necessary” to serve the purposes of § 3553(a)(2)(B) (deterrence), (a)(2)(C) (protection of the public), and (a)(2)(D) (educational or vocational training, medical care, or other correctional treatment); and be “consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. [§ ] 994(a) ...” 18 U.S.C. § 3583(d)(2), (3). A special condition must be related to at least one factor. E.g., Miller, 665 F.3d at 126 (citation omitted). Furthermore, for sex offenses, the Guidelines address computer use, recommending district courts impose “[a] condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such items U.S.S.G. § 5D1.3(d)(7)(B) (emphasis added). Regardless, “[a] district court has discretion to craft conditions of supervised release, even if the Guidelines do not recommend those conditions”. United States v. Windless, 719 F.3d 415, 421 (5th Cir.2013) (citation omitted). Although our court has previously considered challenges to special conditions involving limitations or bans on computer and Internet use, none of our precedent addresses directly whether, as in this instance, a court abuses its discretion by imposing a software-installation special condition, “blocking]/ monitor[ing]” computer access to “sexually oriented websites”, when defendant has a single, prior sex-related conviction and neither defendant’s offense, nor his related criminal history, involved computer or Internet use. Each" }, { "docid": "167942", "title": "", "text": "28 U.S.C. [§ ] 994(a) ...” 18 U.S.C. § 3583(d)(2), (3). A special condition must be related to at least one factor. E.g., Miller, 665 F.3d at 126 (citation omitted). Furthermore, for sex offenses, the Guidelines address computer use, recommending district courts impose “[a] condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such items U.S.S.G. § 5D1.3(d)(7)(B) (emphasis added). Regardless, “[a] district court has discretion to craft conditions of supervised release, even if the Guidelines do not recommend those conditions”. United States v. Windless, 719 F.3d 415, 421 (5th Cir.2013) (citation omitted). Although our court has previously considered challenges to special conditions involving limitations or bans on computer and Internet use, none of our precedent addresses directly whether, as in this instance, a court abuses its discretion by imposing a software-installation special condition, “blocking]/ monitor[ing]” computer access to “sexually oriented websites”, when defendant has a single, prior sex-related conviction and neither defendant’s offense, nor his related criminal history, involved computer or Internet use. Each imposition of a special condition turns, of course, on its own facts and applicable law; but, the following three decisions by our court provide guidance for, and offer informative contrasts to, the issue at hand. In United States v. Tang, in which defendant received, inter alia, five-years’ supervised release, our court vacated a computer-use special condition broader than the one at hand. 718 F.3d 476, 479, 483-84 (5th Cir.2013). The special condition provided: The defendant shall not subscribe to any computer online service or access any [I]nternet service during the length of his supervision unless approved in advance by the probation officer. The defendant may not possess [Internet cable software on any hard drive, disk, floppy disk, DVD, diskette, or any other electronic storage media unless approved in advance by the probation officer. Id. at 480. In some respects, Tang involves somewhat similar facts: defendant, with one prior sex-related-offense conviction, failed to register as a sex offender, and the district court banned defendant’s computer and Internet use. Id. at 479-80. Tang differs, however, in three" }, { "docid": "6639492", "title": "", "text": "as] its own impression of [the] defendant,” when making those decisions. United States v. Stoterau, 524 F.3d 988, 1002 (9th Cir.2008) (quoting United States v. Weber, 451 F.3d 552, 557 (9th Cir.2006)). In this case, the court had before it the pre-sentence report, the evidence adduced at trial, a report from a sexual deviancy evaluator, letters of support from Kennedy’s family, and Kennedy’s own statements at sentencing. In reaching its decision to impose a 15-year period of supervision, the court clearly considered this evidence in light of the relevant factors, including the serious nature of Kennedy’s offense, his need for rehabilitation from his child pornography and substance addictions, and his background and characteristics (including the fact that he had twice violated the conditions of his pre-trial supervision). See 18 U.S.C. § 3553(a). We therefore hold that the district court adequately justified its decision, see United States v. Autery, 555 F.3d 864, 871-72 (9th Cir.2009), and affirm the duration of Kennedy’s supervised release as substantively reasonable, see id. at 871. We likewise conclude that the special conditions of release are reasonable. A court has wide discretion to fashion special conditions so long as they are “reasonably related” to the goals of supervised release, § 3553(a)(2)(B)-(D), and involve “no greater deprivation of liberty than is reasonably necessary,” § 3583(d)(2). Kennedy argues that the special conditions imposed on him will result in a “greater deprivation of liberty” than is necessary to achieve those goals. Kennedy is mistaken; the court went to great lengths to tailor the special conditions of release to Kennedy’s situation, such as limiting his participation in plethysmograph testing to only such times as are “determined by [his] therapist” to be necessary, and including an exception in the ban on contact with minors for when Kennedy is “accompanied and supervised” by an adult approved by the therapist or probation officer. Moreover, because the ban on contact with minors and the residency restrictions are reasonably related to the deterrent and public protection goals of supervised release, see § 3553(a)(2)(B)-(D), as well as the goal of rehabilitation, we see no error in the" }, { "docid": "22634511", "title": "", "text": "1235, 1240 (9th Cir.2003). Condition 15 meets the criteria set forth in 18 U.S.C. § 3583(d) for permissible conditions of supervised release. First, it is reasonably related to the goal of specific deterrence. 18 U.S.C. § 3583(d)(1). The mail and the Internet are both channels for the transmission of child pornography. See, e.g., United States v. Fellows, 157 F.3d 1197, 1199 (9th Cir.1998) (defendant received child pornography through the mail and through the Internet). Commercial mail services allow customers to receive mail at non-residential locations. So do post office boxes. It is reasonable to infer that people may choose to receive mail at nonresidential locations when they are attempting to conceal their identity. Second, this condition does not impose a “greater deprivation of liberty than is reasonably necessary” as required by § 3583(d)(2), because Stoterau will still have unencumbered access to the mail through his residential address and has the option of utilizing a P.O. box with prior approval from his probation officer. Accordingly, the district court did not abuse its discretion in imposing this condition. E Condition 17 states: The defendant shall not associate or have verbal, written, telephonic, or electronic communication with any person under the age of 18, except: a) in the presence of the parent or legal guardian of said minor; and b) on the condition that the defendant notify said parent or legal guardian of his conviction in the instant offense. Stoterau argues that the notification prong of this condition is unnecessary, given the required presence of the parent during any and all allowed communications. We have previously upheld a condition which ordered a sex offender to “not have contact with children under the age of 18 unless approved by [his] probation officer.” United States v. Bee, 162 F.3d 1232, 1235 (9th Cir.1998) (internal quotation marks omitted) (alteration in original). Like the condition in Bee, Condition 17 comports with the requirements of 18 U.S.C. § 3583(d) because it promotes Stoterau’s rehabilitation, deters him from committing future crimes, and protects the public. Moreover, contrary to Stoterau’s assertion, the notification prong of Condition 17 is reasonably related" }, { "docid": "23248606", "title": "", "text": "§§ 3583(d)(2), 3553(a)(2)(C). Rodriguez has at least one conviction involving violence against a pregnant wom an. He is a repeat offender of driving under the influence of alcohol. Furthermore, unlike the defendant in Davis, here the PSR, the truthfulness of which Rodriguez has never disputed, shows Rodriguez has actually harmed a child. In addition, the PSR indicates that Rodriguez’s ex-wife feared Rodriguez’s visitation with the children because he might take off with them. Any liberty interest Rodriguez has in freely associating with minors and raising his own children is outweighed by the need to protect them. Therefore, restricting Rodriguez from having contact with children, including his own, except under the supervision of another adult designated in writing by the probation officer, is not overly broad because the restriction provides no “greater deprivation of liberty than is necessary” to protect his children and other minors. Other courts have found similar conditions of supervised release to be permissible. See United States v. Levering, 441 F.3d 566, 568-69 (8th Cir.2006) (upholding special condition of supervised release prohibiting all contact with female children under age 18, including the defendant’s children, unless approved by the probation officer); United States v. Smith, 436 F.3d 307 (1st Cir.2006) (upholding supervised release condition requiring defendant to stay away from his minor daughter unless and until the probate court ordered otherwise). Therefore, pursuant to Gall’s deferential abuse-of-discretion standard, the district court did not err in imposing the association condition. C. Residence Restriction The residence restriction, though encompassing, is not overly broad, either. Congress has mandated such a restriction is permissible if it imposes “no greater deprivation of liberty than is necessary” to protect the public. See 18 U.S.C. §§ 3583(d), 3563(b)(13). Here, the district court tailored the residence restriction by permitting Rodriguez to live within a 1000 or 100 feet of such areas with the prior approval of his probation officer. Therefore, the restriction is not absolute, and Rodriguez may live in such areas if improvements in his conduct and condition might occur as a result of living in such areas. See id. § 3603(3). Likewise, the residence restriction" }, { "docid": "7001863", "title": "", "text": "supervised release. A sentencing judge is afforded wide discretion when imposing terms of supervised release, see United States v. Crose, 284 F.3d 911, 912 (8th Cir.2002) (per curiam), and we review a decision to impose special terms of supervised release for abuse of that discretion. United States v. Weiss, 328 F.3d 414, 417 (8th Cir.2003). But this discretion is limited by 18 U.S.C. § 3583(d), which provides that a court may impose only those special conditions of supervised release that satisfy three statute- ry requirements. First, the special conditions must be “reasonably related” to five matters: the nature and circumstances of the offense, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medical or other correctional needs. 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D); United States v. Fields, 324 F.3d 1025, 1026-27 (8th Cir.2003). Second, the conditions must “involve[] no greater deprivation of liberty than is reasonably necessary” to advance deterrence, the protection of the public from future crimes of the defendant, and the defendant’s correctional needs. 18 U.S.C. §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D). Finally, the conditions must be consistent with any pertinent policy statements issued by the sentencing commission. 18 U.S.C. § 3583(d)(3). Mr. Crume argues that the conditions imposed, including those restricting his use of computers and the Internet, prohibiting him from being in places where minor children congregate, and restricting his contact with children under the age of eighteen, fail to satisfy the requirements of § 3583(d). He first argues that the conditions of supervised release that completely bar his access to computers and the Internet (without first receiving written consent from his probation officer) represent a greater deprivation of his first amendment rights than is reasonably necessary. Although the district court is entrusted with broad discretion to fashion special conditions of supervised release, we are particularly reluctant to uphold sweeping restrictions on important constitutional rights. Our decisions to uphold similar restrictions on Internet access and computer use in United States v. Ristine, 335 F.3d 692, 696 (8th Cir.2003)," }, { "docid": "23248587", "title": "", "text": "sentencing hearing, and he concurred in the above Sentencing Guidelines calculation. Based upon the information before it, the Sentencing Guidelines, and the relevant statutory authority, the district court imposed three concurrent thirty-month terms of imprisonment, a three-year term of supervised release, and supervised release conditions. The supervised release conditions include a prohibition on “associating with any child or children under the age of eighteen, except in the presence and supervision of an adult specifically designated in writing by the probation officer” (“association restriction”), and a prohibition on residing within 1000 feet of real property comprising a public or private elementary, vocational, or secondary school or public or private college, junior college, university or playground or a housing authority owned by a public housing authority or within 100 feet of a public or private youth center, public swimming pool or video arcade facility, without prior approval of the probation officer (“residence restriction”). The district court stated it would not order Rodriguez to register as a sex offender because Rodriguez had not been convicted of a sex offense. At sentencing, Rodriguez objected to the association and residence restrictions. Rodriguez argued his convictions for assaulting federal officers did not constitute sex offenses. Rodriguez, however, did not assert the information regarding the alleged sexual assault of a minor in the PSR was untrue, nor did he deny the pending charge. The district court overruled Rodriguez’s objections. On appeal, Rodriguez argues the district court abused its discretion by imposing the association and residence restrictions. Rodriguez contends these supervised release conditions are (1) not reasonably related to the sentencing factors of 18 U.S.C. § 3553(a) (“section 3553(a)”) and (2) impose greater deprivations of liberty than are necessary to achieve the goals of section 3553(a). DISCUSSION The district court may impose upon a defendant a term of supervised release as part of its sentencing decision. See 18 U.S.C. § 3583(a) (“section 3583”). This court reviews the portion of a sentencing decision related to an imposed imprisonment term based upon the Sentencing Guidelines under a deferential abuse of discretion standard. See United States v. Cisneros-Gutierrez, 517 F.3d 751," }, { "docid": "2211575", "title": "", "text": "United States v. May, 535 F.3d 912, 921 (8th Cir.2008) (notice of state registration requirements satisfies due process); id. at 921-22 (§ 2250 is constitutional under the Commerce Clause). Accordingly, we affirm the district court’s denial of the motion to dismiss the indictment. Springston also renews challenges to three of the special conditions of his supervised release: special condition 2, which prohibits him from having unsupervised contact with minors; special condition 3, which provides that he may not access the Internet without prior approval from the probation office and may not have Internet access at his residence; and special condition 6, which requires that he submit to mental health testing or treatment with an emphasis on sex offender treatment, as deemed necessary and directed by a probation officer. We review the special conditions for abuse of discretion. United States v. Durham, 618 F.3d 921, 933 (8th Cir.2010). A district court has broad discretion to impose special conditions of supervised release, so long as each condition complies with the requirements set forth in 18 U.S.C. § 3583(d). United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006). Section 3583(d) first requires that a special condition must be reasonably related to the nature and circumstances of the offense of conviction, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medical, or other correctional needs. 18 U.S.C. § 3583(d)(1); see id. § 3553(a)(1), (a)(2)(B)-(D). A special condition need not be related to all the factors; the factors are to be weighed inde pendently. United States v. Camp, 410 F.3d 1042, 1046 (8th Cir.2005). Second, a special condition also must involve no greater deprivation of liberty than is reasonably necessary to deter criminal conduct, to protect the public from further crimes of the defendant, and to provide for the defendant’s educational, vocational, medical, and other correctional needs. 18 U.S.C. § 3583(d)(2); see id. § 3553(a)(2)(B)-(D). Finally, a special condition must be consistent with any pertinent policy statements issued by the Sentencing Commission. Id. § 3583(d)(3). In fashioning" }, { "docid": "19351202", "title": "", "text": "S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Wallace, 2014 WL 1978408, at *4 (7th Cir. May 16, 2014); United States v. Fareri, 712 F.3d 593, 595 (D.C.Cir.2013). We are surprised that apart from the sentence itself—both the written version, which lists the conditions of supervised release imposed on the defendant, and the judge’s oral sentencing statement, which mentions a few of them—the only reference in the trial or appellate record to supervised release is an occasionally repeated statement that the term of supervised release is three years. The presen-tence report contains no recommendations concerning the conditions. Although the probation officer who prepares the report also prepares a separate document entitled “Sentencing Recommendation,” which includes recommended conditions of supervised release, the district court is authorized to conceal the recommendations from the defendant and his lawyer, Fed. R.Crim.P. 32(e)(3). The U.S. District Court for the Southern District of Illinois has directed its judges to do so, S.D. 111. Local Rule Cr 32.1(b), and it was done in this case. (The reason for such secrecy, as noted in United States v. Peterson, 711 F.3d 770, 776 and n. 2 (7th Cir.2013), is “to allow probation officers the opportunity to provide a candid assessment of the defendant to the court and to protect the effectiveness of the probation officer in the supervisory context,” though in some districts—the Northern District of Illinois, for example—the probation office is structured to assign a different probation officer to supervise the defendant when he’s released from the officer who prepared the sentencing recommendation.) Factual information in the probation officer’s recommendation must be disclosed to the defendant, however. See Fed.R.Crim.P. 32(i)(Z )(B); also 1974 Advisory Committee Notes to Fed.R.Crim.P. 32; United States v. Godat, 688 F.3d 399, 401 (8th Cir.2012); United States v. Baldrich, 471 F.3d 1110, 1113-15 (9th Cir.2006). But not knowing the recommendation itself may make it difficult for the defendant to mount an effective challenge to it. Although some conditions of supervised release are mandatory, see 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a), and others, though not mandatory, are “standard,” §§ 5D1.3(b)-(c), still others—which like" }, { "docid": "7988715", "title": "", "text": "oral pronouncement controls. Id. at 381. If the written judgment simply clarifies an ambiguity in the oral pronouncement, we look to the sentencing court’s intent to determine the sentence. United States v. Warden, 291 F.3d 363, 365 (5th Cir.2002). Here, the oral pronouncement conflicts with the written judgment by adding a new restriction, as cohabitation generally concerns Tang’s residential life and dating generally concerns Tang’s social life. See Bigelow, 462 F.3d at 381; see also United States v. Vega, 332 F.3d 849, 852-53 (5th Cir.2003) (explaining defendant’s “constitutional right to be present at sentencing” is reason for ensuring oral pronouncement controls when written judgment adds condition). Accordingly, the district court abused its discretion by including an additional restriction in the written judgment that was not part of the oral pronouncement of sentence. Tang asserts the restriction on contact with minors is a greater deprivation than reasonably necessary and unrelated to the § 3553 factors. In particular, Tang asserts his prior conviction does not evince a generalized inappropriate interest in children that would justify a restriction on his parenting decisions as a deterrent to potential future criminal activity. Our review is for abuse of discretion because Tang objected to this condition at sentencing. Paul, 274 F.3d at 165. The restriction on contact with minors is reasonably related to the § 3553 factors. First, it is reasonably related to Tang’s history, specifically his conviction for assault of a minor with intent to commit sexual abuse. Second, it is reasonably related to deterrence and protecting the public, as “Congress has made clear that children ... are members of the public it seeks to protect by permitting a district court to impose appropriate conditions on terms of supervised release.” United States v. Rodriguez, 558 F.3d 408, 417 (5th Cir.2009). Lastly, the restriction is not a greater deprivation than reasonably necessary as Tang can request permission to have contact with minors (or cohabitate with someone having minor children). See 18 U.S.C. § 3583(d)(2). E Tang asserts the district court unconstitutionally delegated its authority to the Probation Office by giving the Office discretion over the length" }, { "docid": "7988716", "title": "", "text": "on his parenting decisions as a deterrent to potential future criminal activity. Our review is for abuse of discretion because Tang objected to this condition at sentencing. Paul, 274 F.3d at 165. The restriction on contact with minors is reasonably related to the § 3553 factors. First, it is reasonably related to Tang’s history, specifically his conviction for assault of a minor with intent to commit sexual abuse. Second, it is reasonably related to deterrence and protecting the public, as “Congress has made clear that children ... are members of the public it seeks to protect by permitting a district court to impose appropriate conditions on terms of supervised release.” United States v. Rodriguez, 558 F.3d 408, 417 (5th Cir.2009). Lastly, the restriction is not a greater deprivation than reasonably necessary as Tang can request permission to have contact with minors (or cohabitate with someone having minor children). See 18 U.S.C. § 3583(d)(2). E Tang asserts the district court unconstitutionally delegated its authority to the Probation Office by giving the Office discretion over the length of Tang’s mental health or sex offender treatment and Tang’s contact with minors. We review this challenge for plain error because Tang did not object to the delegation at his sentencing. Neal, 578 F.3d at 272. We addressed a similar challenge to the Probation Office’s discretion over counseling in United States v. Bishop, and we held any error in the limits of “a district court’s authority to delegate to a probation officer the determination of whether and to what extent a convicted defendant on supervised release must participate in counseling” was not plain. 608 F.3d 279, 281 (5th Cir.2010). In addition, we addressed a similar challenge to the Probation Office’s discretion .over contact with minors in United States v. Rodriguez: Probation officers have broad statutory authority to advise and supervise persons on supervised release to improve the releasees’ conduct and lives, and to “perform any other duty that the court may designate.” See 18 U.S.C. §§ 3601, 3603(3), (10). In Rodriguez’s case, the district court recognized the association and residence restrictions should be flexible, and" }, { "docid": "22202204", "title": "", "text": "prison. One of these pertains to computer and Internet access: [The defendant] shall not use any computer at any location, whether or not at [his] place of employment, residence, or elsewhere, without the prior written permission of the probation officer. [The defendant] shall not possess or use any phone or any other electronic device that allows access to the internet without prior written permission from [the] probation officer. Miller objected to this restriction at the time he was sentenced on the basis that it did not reasonably relate to the statutory criteria set forth in 18 U.S.C. §§ 3553(a) or 3583, and was a greater restriction on his liberty than necessary. He carries these complaints forward on appeal, and we apply an abuse of discretion standard of review. Pursuant to 18 U.S.C. § 3583, supervised release for a violation of 18 U.S.C. § 2252 — to which Miller pled guilty — is authorized to be “any term of years not less than 5, or life.” We have explained that § 3583 and § 3553 require that supervised release conditions be “reasonably related” to “(1) the nature and characteristics of the offense and the history and characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the protection of the public from further crimes of the defendant, and (4) the provision of needed educational or vocational training, medical care, or other correctional treatment to the defendant.” A condition of supervised release must be related to “ ‘any’ ” of these factors, “ ‘not necessarily all of them.’ ” The condition “cannot impose any ‘greater deprivation of liberty than is reasonably necessary.’ ” The condition should take into consideration the policy statements issued by the Sentencing Commission. The Guidelines state that for a “sex offense” such as that committed by Miller, the term “may be up to life.” The Guidelines also include the following “Policy Statement”: “If the instant offense of conviction is a sex offense, however, the statutory maximum term of supervised release is recommended.” Miller concedes that some restrictions on his use of a computer or the Internet “may" }, { "docid": "7988705", "title": "", "text": "the ban on Internet without approval from a probation officer is contrary to U.S. Sentencing Guidelines Manual § 5D1.3(d)(7) and the § 3553(a) factors. Our review is for abuse of discretion because Tang objected to this condition at sentencing. Paul, 274 F.3d at 165. Section 5D1.3(d)(7) recommends, as a special condition of release for an individual convicted of a “sex offense,” a limitation on the “use of a computer or an interactive computer service in cases in which the defendant used such items.” U.S. Sentencing Guidelines Manual § 5D1.3(d)(7)(B) (2012) (emphasis added). The instant offense for which Tang was sentenced is his failure to register. His prior offense, assault with intent to commit sexual abuse, not causing bodily injury, did not involve a computer or the Internet. There is no evidence that Tang has ever used the Internet to commit an offense of any sort. Thus, Tang asserts this condition cannot be based on § 5D1.3(d)(7). Tang further asserts the Internet ban does not satisfy the § 3553 factors. In particular, he claims the Internet ban is not “rea sonably related” to the nature of the offense (here, the failure to register) and involves a greater deprivation of liberty than reasonably necessary given the circumstances. See 18 U.S.C. § 3588(d)(1)-(2). We agree. The Internet ban is not “reasonably related to the factors set forth in” § 3553(a) and involves a greater deprivation of liberty than reasonably necessary. 18 U.S.C. § 3583(d)(l)-(2). The ban does not relate to the “nature and circumstances” of Tang’s offense: here, the failure to register as a sex offender. 18 U.S.C. § 3553(a)(1); see United States v. Miller, 665 F.3d 114, 130 (5th Cir.2011) (“The decisions of our court have tended to permit sentencing courts to give more weight to the goals of protecting the public and preventing recidivism in balancing those considerations with a defendant’s liberty interests when Internet usage was related to the offense for which the defendant was convicted.”) (emphasis added), cert. denied, — U.S. -, 132 S.Ct. 2773, 183 L.Ed.2d 643 (2012). Nor does it relate to “the history and characteristics of" }, { "docid": "18138768", "title": "", "text": "'in a sex offender treatment program, and participation if further ordered, was reasonably related to the purposes of supervised release. See York, 357 F.3d at 20. As noted, such purposes include the need to deter further criminal conduct, the need to protect the public from further crimes by the defendant, and the need to provide the defendant with needed training or effective correctional treatment. See 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b)(l). The condition here was reasonably related both to the need, while Prochner was still under supervision, to protect the public from future potential crimes by Prochner (who had already committed a serious crime, albeit of a different kind) and the need to provide Prochner with whatever treatment he might need. Finally, the special condition relative to sex offender treatment did not involve, in Prochner’s case, any greater deprivation of liberty than is reasonably necessary for the purposes of supervised release. See 18 U.S.C. § 3583(d)(2), (3); U.S.S.G. § 5D1.3(b)(2). The district court did not require Prochner to register as a sex offender. The government reasonably interprets the court’s order as directing Pro-chner to participate in a sex offender treatment program only if, after a sex offender evaluation, the Probation Office and the Court conclude that participation is appropriate. When the district judge imposed the sentence, he recommended that Prochner be designated to a facility where he could undergo a sex offender evaluation. The court further stated that Prochner would only be required to participate, “if directed to do so by the Probation Office and the Court.” In conclusion, the treatment condition is not unreasonable nor do we think the court committed plain error in imposing it. 2. Contact with Minors Prochner also complains about the special conditions limiting his contact with minors during the term of supervised re lease: (1) the condition prohibiting Pro-chner “from engaging in an occupation, business or profession that would require direct supervision of children under the age of 18”; and (2) the condition prohibiting him from “hav[ing] any unsupervised contact with anyone under the age of 18.” As noted, he registered no complaint" }, { "docid": "7988699", "title": "", "text": "shall not cohabitate with anyone who has children under the age of 18 unless approved in advance by the probation officer. The probation officer present clarified that the restriction does apply to one’s own children. As she did with the two conditions discussed above, Tang’s counsel objected to the restriction, saying, “I ... object to the no contact with a child under 18 without permission and no cohabitation.” The court overruled all of Tang’s objections; therefore, the Internet ban, mental health and sex offender treatment, and restriction on contact with minors all applied as conditions of Tang’s supervised release. In the section restricting contact with minors, the written judgment changed “shall not cohabitate with” to “shall not date or cohabitate with.” Tang timely appealed these conditions, including the change in the written judgment. II We “first ensure that the district court committed no significant procedural error, such as ... failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If there is no procedural error, we “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard ... tak[ing] into account the totality of the circumstances.” Id. “To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir.2009). We review the imposition of conditions of supervised release for abuse of discretion. United States v. Paul, 274 F.3d 155, 165 (5th Cir.2001). However, “[w]hen a defendant objects to his sentence on grounds different from those raised on appeal, we review the new arguments raised on appeal for plain error only.” United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir.2003). III Although a district court generally has extensive discretion in imposing conditions of supervised release, its discretion is limited by 18 U.S.C. § 3583(d), which provides that the district court may impose conditions of supervised release that are reasonably related to the factors in 18 U.S.C. § 3553(a). 18 U.S.C." }, { "docid": "18138765", "title": "", "text": "Sex Offender Treatment Program Prochner now argues that the district court erred in imposing the special condition that he participate, if so directed by the Probation Office and the Court, in a sex offender specific treatment program, because his conviction did not involve a sex-related offense and he has never been accused of sexual assault. A sentencing judge has the authority to impose any condition of supervised release that is “reasonably related to (1) the defendant’s offense, history, and characteristics; (2) the need to deter the defendant from further criminal conduct; (3) the need to protect the public from further crimes by the defendant; and (4) the effective educational, vocational, medical, or other correctional treatment of the defendant.” York, 357 F.3d at 20; see 18 U.S.C. § 3583(d)(1) (incorporating by reference 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)); U.S.S.G. § 5D1.3(b)(1). Although these factors are connected by the “and” conjunction, see 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b)(l), “the critical test is whether the challenged condition is sufficiently related to one or more of the permissible goals of supervised release.” York, 357 F.3d at 20 (quoting United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000)) (emphasis in York); see also United States v. Barajas, 331 F.3d 1141, 1146 (10th Cir.2003) (noting that every circuit to have decided the issue has adopted this interpretation notwithstanding the conjunction “and”). Thus, the fact that the special condition of sex offender treatment is not related to the crime of conviction does not, by itself, render the condition invalid. See York, 357 F.3d at 20. Nothing contained in the statute underlying U.S.S.G. § 5D1.3 limits the condition of sex offender treatment just to individuals convicted of sex offenses. Id.; see 18 U.S.C. § 3583. There are, to be sure, limitations on the district court’s power to impose special conditions of supervised release. The condition can “involve[] no greater deprivation of liberty than is reasonably necessary” to achieve the purposes of supervised release, and it must be “consistent with any pertinent policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(2), (3); U.S.S.G." }, { "docid": "14959634", "title": "", "text": "it does not rise to this level. We have approved special conditions that involve a greater level of intrusion into a supervisee’s life, such as a condition permitting suspicionless searches of the supervisee’s person, property, and automobile. See United States v. Hanrahan, 508 F.3d 962, 971 (10th Cir.2007). Regardless of whether the polygraph eon dition is in place, Begay will be required to undergo sex offender treatment and meet with his probation officer. See Lee, 315 F.3d at 217 (“Since appellant is already directed to report periodically to the probation officer and provide truthful answers ... the additional requirement that Lee undergo polygraph testing does not place a significantly greater demand on him.”). Begay has not explained how polygraph testing constitutes a significant further deprivation of his liberty. The district court did not abuse its discretion by imposing the condition. AFFIRMED. . These enumerated sections are the non-punitive 18 U.S.C. § 3553(a) factors: the nature and circumstances of the offense and the history and characteristics of the defendant; the need to afford adequate deterrence to criminal conduct; the need to protect the public from further crimes of the defendant; the need to provide the defendant with needed training and/or care; the kinds of sentences available and the sentencing range; pertinent policy statements; the need to avoid unwarranted sentencing disparities; and the need to provide restitution. . The advisory committee notes to Rule 32.1 discuss the reasons a probationer should have the right to apply to the sentencing court for a clarification or change of conditions, and state that \"[probation conditions should be subject to modification, for the sentencing court must be able to respond to changes in the probationer's circumstances as well as new ideas and methods of rehabilitation.” Fed.R.Crim.P. 32.1 advisory committee's note. The committee's view that courts must be able to modify conditions in order to respond to changed circumstances does not mean that changed circumstances are necessary for modification. Further, Rule 32.1 is not the source of a district court’s authority to modify the conditions of supervised release; it sets forth only procedural requirements (notice and an" }, { "docid": "23105715", "title": "", "text": "was conceived as a result of his impregnating a fourteen-year-old girl). Furthermore, § 3583(d) requires us to examine a defendant’s history and personal characteristics. See 18 U.S.C. § 3583(d)(1) (citing 18 U.S.C. § 3553(a)(1)). Here, Simons has two convictions involving minor victims: (1) his 2003 Kansas conviction for attempted indecent liberties with a child, and (2) his 2005 Oklahoma conviction for first degree rape by force and fear. It appears that the victim of Simons’s Oklahoma rape was his 15-year-old sister-in-law. We conclude that Simons’s criminal record adequately supports the district court’s no-contact condition, protecting the public from his future crimes. Moreover, we note that the condition is not a complete ban, as Simons can still have contact with minors, including his own children, if he obtains permission from his probation officer. Thus, because “requiring prior approval before [Simons,] a convicted sex offender[,] has contact with minors is a reasonable means of ensuring that such contact remains appropriate!,]” Mickelson, 433 F.3d at 1057, we hold that special condition 5 is not unreasonably restrictive, and the district court did not plainly err in imposing it. C. Special condition 6 prohibits Simons from coming within 500 feet of schools, parks, playgrounds, or other places used primarily by children under the age of 18, unless he secures prior approval from his probation officer. Simons argues that this condition is unnecessarily restrictive, in violation of 18 U.S.C. § 3583(d)(1), as it bears no relationship to his offense or criminal history. We have previously upheld conditions prohibiting a defendant from visiting places where children congregate. See Crume, 422 F.3d at 730, 733-34 (upholding special condition prohibiting a child-pornography defendant from visiting “places where minor children under the age of 18 congregate” without permission of his probation officer); United States v. Ristine, 335 F.3d 692, 693, 696-97 (8th Cir.2003) (same). But see Bender, 566 F.3d at 753-54 (reversing, as a greater deprivation of liberty than was reasonably necessary, a condition that prohibited a defendant from frequenting places minors are known to frequent without permission, and then only in the presence and supervision of a responsible adult)." }, { "docid": "13008773", "title": "", "text": "[the defendant] from interacting with his children. He may have contact with children, including his own, with the written consent of his probation officer. We also note that we do not agree with the defendant that this provision prohibits him from accepting a letter written to him by one of his children. Accordingly, the district court did not abuse its discretion by forbidding [the defendant] from having contact with children under the age of eighteen absent written consent. Id; see also United States v. Ristine, 335 F.3d 692, 696 (8th Cir.2003) (upholding a special condition that barred the defendant, who was convicted of possessing child pornography, from going to places where minor children congregate without prior approval from his probation officer because the purpose of the condition was to limit the defendant’s access to children and the restriction should be read to prohibit the defendant’s presence only at places where minor children congregate); United States v. Heidebur, 417 F.3d 1002, 1004 (8th Cir.2005) (upholding a special condition that prohibited the defendant from contact with children under the age of 18 unless the probation officer gave prior written permission because the deprivation of liberty was not greater than that which is reasonably necessary under the circumstances, considering the defendant was convicted of conduct involving the sexual exploitation of a minor); United States v. Vick, 421 F.3d 794 (8th Cir.2005) (upholding a supervised release condition that prohibited the defendant, who was convicted of possessing child pornography, from having contact with children under the age of 18, including his daughter, unless he received prior written approval from his probation officer because the condition was tailored to the defendant’s “extensive history with minors, was reasonably related to the nature of seriousness of the offense, and was needed to deter [the defendant] and protect the public”). Other recent decisions have also approved “ ‘virtually identical supervised release conditions’ ” for defendants who have pleaded guilty to receiving child pornography. See United States v. Levering, 441 F.3d 566, 569 (8th Cir.2006) (quoting United States v. Mickelson, 433 F.3d 1050, 1057 (8th Cir.2006)). In Mickelson, the defendant" } ]

[ { "docid": "21015420", "title": "", "text": "claim in his motion for new trial or on state collateral attack, but it is clear that, absent such an argument in those forums, Finley’s Brady claim was procedurally barred there since it is the sort of claim that could have been raised on direct appeal but was not. Gardner, 959 S.W.2d at 199. If there is a valid reason why it was not, Finley has never shared that reason with the state courts. Furthermore, since Finley now seeks federal habeas relief based upon factual allegations that he has never made in the Texas courts, it is clear that he has failed to exhaust his state remedies. Nobles, 127 F.3d at 419-20. To exhaust his state remedies, a habeas petitioner must fairly present the substance of his claim to the state courts. Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). The exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Finley cannot return to the Texas courts to cure this deficiency, however, because the Texas abuse of the writ doctrine prohibits a second habeas petition, absent a showing of cause, if the petitioner urges grounds therein that could have been, but were not, raised in his first habeas petition. Nobles, 127 F.3d at 422-23. Obviously, he could have asserted the newness of his discovery of the Brady violation in his first habeas petition. He asserted the violation; he must have known when he learned of it. Thus, Texas would bar a second petition by Finley and this bar represents an additional adequate state procedural ground which bars federal review of his claim. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.1995). If a petitioner fails to exhaust state remedies, but the court to which he would be required to return to meet the exhaustion requirement would now find the claim procedurally barred, then there has been a procedural default for purposes of federal habeas corpus relief. Sones v. Hargett," } ]

[ { "docid": "7767512", "title": "", "text": "L.Ed.2d 931 (2003) (COA is a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). To obtain a COA, Elizalde must make a “substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). To do so he must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” See 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. To obtain a COA for the claims which the district court found procedurally barred, Elizalde must, in addition to establishing the debatability of the underlying constitutional claim, demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural rulings as to those claims. See Slack, 529 U.S. at 484, 120 S.Ct. 1595; Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). A Elizalde contends that the district court incorrectly determined that his fourth, fifth and sixth claims were procedurally barred. He does not assert that the claims were exhausted in state court. Rather he argues that he has established “cause and prejudice” justifying his failure to exhaust them because he was denied effective assistance of state habeas counsel. Additionally, he argues that because the state procedural bar preventing him from exhausting his claims violates due process, there is no independent state law ground justifying the federal court’s refusal to consider these claims. A federal habeas application brought by a person in custody pursuant to a state court judgement shall not be granted unless the applicant has exhausted the remedies available in state court. 28 U.S.C. § 2254(b)(1); Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir.2001). A claim not raised in the petitioner’s initial state habeas application that would now be procedurally barred from consideration by the state court is “procedurally barred [in federal court] for failure to exhaust.” Beazley, 242 F.3d at 264." }, { "docid": "23586986", "title": "", "text": "appeals). A COA will not be granted unless the petitioner makes “a substantial showing of the denial of a constitutional right”. Id. § 2253(c)(2). 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 quotation marks and citation omitted). Restated, the petitioner “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong”. Id. at 1604. On the other hand, Slack provides a two-prong test when the denial of relief is based on procedural grounds (Slack two-prong test): the petitioner must show not only that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right”, but also that they “would find it debatable whether the district court was correct in its procedural ruling”. Id. (emphasis added); see Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.) (quoting Slack), cert. denied, — U.S. -, 121 S.Ct. 400, 148 L.Ed.2d 308 (2000). In considering the claims for which Beazley requests a COA from our court, we begin with those raised for the first time in federal court (which therefore are procedurally barred) and then consider those that procedurally are properly before us. Each COA request is denied. 1. The claims found procedurally barred are discussed in subparts a. through i. of this part. For each, Beazley fails to satisfy the Slack two-prong test. Under 28 U.S.C. § 2254(b)(1)(A), a court shall not grant habeas relief unless “the applicant has exhausted the remedies available in the courts of the State”. The requirements of the exhaustion concept are simple: An applicant must fairly apprise the highest court of his state of the federal rights which were allegedly violated. Further, the applicant must present his claims in a procedurally correct manner. If, for whatever reason, an applicant bypasses the appellate processes of his" }, { "docid": "14409131", "title": "", "text": "process right. Reasonable jurists could not debate or find wrong that counsel did not unreasonably decline to object to these comments. In any event, Cotton was not prejudiced by his counsel’s failure to object. Throughout voir dire and during closing arguments the court and counsel repeatedly informed the jury that whether Cotton received a death sentence would be based on the jury’s answers to the special issues submitted to them at the end of the punishment phase of the trial. Cotton’s counsel was not constitutionally ineffective. In the absence of ineffective assistance, Cotton cannot establish cause to excuse the procedural default of his due process claim. Reasonable jurists could not debate or find wrong the district court’s conclusion that Cotton’s claim is proeedurally barred. Therefore, we deny his application for a COA on his Due Process claim. Additionally, Cotton is not entitled to a COA on his Caldwell claim. Cotton did not raise this theory during his state habeas proceedings. Federal courts cannot grant habeas relief unless the applicant has presented the claims to the state court and exhausted the remedies available in state court. 28 U.S.C. 2254(b) (2000); Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir.2001), cert. denied, 534 U.S. 1163, 122 S.Ct. 1175, 152 L.Ed.2d 118 (2002). Where an applicant has not presented a legal theory to the state court it is not exhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.2001). Reasonable jurists could not debate or find wrong the conclusion that Cotton cannot return to the Texas courts to present this claim. Texas’s abuse of writ doctrine prohibits the filing of a successive petition to raise this claim, absent a showing of cause, if it could have been raised in his first habeas petition. Id.; see also Tex.Code Grim. Proc. 11.071, § 5(a) (stating Texas’s abuse of writ doctrine). Cotton could have objected when the allegedly inappropriate comments were made by the judge, and he certainly could have raised the claim in his first state court petition. Thus, Texas would bar a new petition that presented his Caldwell claim. This bar constitutes an adequate" }, { "docid": "23703222", "title": "", "text": "expressly relies on an adequate and independent procedural bar, a federal habeas petitioner may not obtain relief unless he establishes cause for the default and actual prejudice. Coleman, 501 U.S. at 750, 111 S.Ct. 2546. The existence of cause for a procedural default “ordinarily turn[s] on whether petitioner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). 1 Adequacy of Texas Abuse of Writ Doctrine The district court held that the Texas abuse of the writ doctrine was an adequate procedural bar because it had become “firmly established and regularly followed,” citing Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)). The district court also noted that the Texas abuse of the writ doctrine was strictly and regularly applied at the time Henderson filed his first habeas petition on August 28, 1997, citing Emery v. Johnson, 139 F.3d 191, 195, 201 (5th Cir.1997), and Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.1995). For the first time in his COA application in this court, Henderson argues that the Texas abuse of the writ doctrine is not “adequate” to bar review of his claims because his case involves “exceptional circumstances”. Because Henderson did not argue in the district court that the Texas abuse of the writ doctrine was inadequate to bar consideration of his claims under the procedural default doctrine, it is unnecessary for us to consider it. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir.2003) (“We generally will not consider a claim raised for the first time in a COA application.”). Even if we were to consider Henderson’s “exceptional circumstances” argument, it does not persuade us- that reasonable jurists would find debatable the district court’s procedural ruling on the adequacy of the Texas abuse of the writ doctrine. In support of his belated argument, Henderson, relies on the Supreme Court’s opinion in Lee" }, { "docid": "21706237", "title": "", "text": "Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir.2003) (recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002) (holding unexhausted claims were procedurally barred), cert. dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir.) (holding unexhausted ineffective assistance claim procedurally barred from federal habeas review), cert. denied, 527 U.S. 1059, 120 S.Ct. 29, 144 L.Ed.2d 832 (1999); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.) (holding unex-hausted claims procedurally barred), cert. denied, 523 U.S. 1113, 118 S.Ct. 1793, 140 L.Ed.2d 933 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir.1997) (holding the Texas writ-abuse rule an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). Section 5 of Article 11.071 of the Texas Code of Criminal procedure prohibits a successive state habeas corpus application except in limited circumstances which do not apply to petitioner’s complaint about the violation of the presumption of innocence arising from the alleged vagueness of the first Texas capital sentencing special issue. See Tex.Code Crim. Proc. Ann. art 11.071 § 5 (Vernon Supp.2006) (barring consideration on the merits of new claims contained in a subsequent state habeas corpus application unless: (1) the new claims could not have been presented in a previous application because the legal or factual basis for the new claims were unavailable at the time the previous application was filed; (2) by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt; or (3) by clear and convincing evidence, but for a violation of the United States Constitution, no rational juror would have" }, { "docid": "23703223", "title": "", "text": "28, 1997, citing Emery v. Johnson, 139 F.3d 191, 195, 201 (5th Cir.1997), and Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.1995). For the first time in his COA application in this court, Henderson argues that the Texas abuse of the writ doctrine is not “adequate” to bar review of his claims because his case involves “exceptional circumstances”. Because Henderson did not argue in the district court that the Texas abuse of the writ doctrine was inadequate to bar consideration of his claims under the procedural default doctrine, it is unnecessary for us to consider it. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir.2003) (“We generally will not consider a claim raised for the first time in a COA application.”). Even if we were to consider Henderson’s “exceptional circumstances” argument, it does not persuade us- that reasonable jurists would find debatable the district court’s procedural ruling on the adequacy of the Texas abuse of the writ doctrine. In support of his belated argument, Henderson, relies on the Supreme Court’s opinion in Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002). In that case, Lee claimed that a Missouri trial court deprived him of due process by denying an oral motion for an overnight continuance. Lee had requested the continuance in order to locate subpoenaed alibi witnesses who had been present earlier, but who had left the courthouse without explanation during the trial. Although neither the trial judge nor the prosecutor identified any procedural defect in Lee’s continuance motion, the Missouri Court of Appeals held that the denial of the motion was proper because Lee’s counsel had not complied with procedural rules specifying the showing required for such a motion and requiring that continuance motions be in writing, accompanied by an affidavit. The Supreme Court held that, under the exceptional circumstances of that case, “the Missouri Rules, as injected into this case by the state appellate court, did not constitute a state ground adequate to bar federal 'habeas review.” Id. at 365, 122 S.Ct. 877. The Court found that four special circumstances existed: (1)" }, { "docid": "21214450", "title": "", "text": "doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir.2003)(recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir.2002)(holding unexhausted claims were procedurally barred), cert. dism’d, 541 U.S. 913, 124 S.Ct. 1652, 158 L.Ed.2d 263 (2004); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir.1999) (holding unexhausted ineffective assistance claim procedurally barred from federal habeas review), cert. denied, 527 U.S. 1059, 120 S.Ct. 29, 144 L.Ed.2d 832 (1999); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.1998)(holding unexhausted claims procedurally barred), cert. denied, 523 U.S. 1113, 118 S.Ct. 1793, 140 L.Ed.2d 933 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir.1997) (holding the Texas writ-abuse rule an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). Section 5 of Article 11.071 of the Texas Code of Criminal procedure prohibits a successive state habeas corpus application except in limited circumstances which do not apply to petitioner’s complaint about the violation of the presumption of innocence arising from the alleged vagueness of the first Texas capital sentencing special issue. See Art. 11.071, § 5, Tex.Code Crim. Proc. Ann. (Vernon Supp.2006)(barring consideration on the merits of new claims contained in a subsequent state habeas corpus application unless either (1) the new claims could not have been presented in a previous application because the legal or factual basis for the new claims were unavailable at the time the previous application was filed; (2) by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt; or (3) by clear and convincing evidence, but for a violation of the United States Constitution, no rational juror would have answered in the state’s favor one" }, { "docid": "7832132", "title": "", "text": "granted Robertson’s motion for a COA and granted the writ, requiring Robertson to be retried for the penalty phase of his prosecution. Robertson v. Cockrell, 279 F.3d 1062 (5th Cir.2002). Upon the state’s motion, this court reheard the case en banc. Robertson v. Cockrell, 300 F.3d 881 (5th Cir.2002). II. STANDARD OF REVIEW This instant case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), as Robertson’s habeas petition was filed after the effective date of the Act. 28 U.S.C. § 2254(d) (2002). Thus, the AEDPA applies to both his COA application and his habeas petition. Lindh v. Murphy, 521 U.S. 320, 335-36, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Nobles v. Johnson, 127 F.3d 409, 412-13 (5th Cir.1997). To prevail on an application for a COA, an applicant must make a substantial showing of the denial of a constitutional right, a demonstration that ... includes showing that reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. 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) (quotations and citations omitted). We grant Robertson’s request for a COA, as he raises issues that are debatable among reasonable jurists. Id. at 500. To prevail on a petition for writ of habe-as corpus, a petitioner must demonstrate that the state court proceeding “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); see Moore, 225 F.3d at 501. Before this court may grant habeas relief under the “unreasonable application” clause, the state court’s application must be more than merely incorrect. Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir.2000). 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)). III. DISCUSSION" }, { "docid": "14409112", "title": "", "text": "bicycle and rode toward Caruthers’ car. Caruthers drove into Cotton, knocking Cotton off his bike. Cotton and Watson then escaped. Cotton was first tried for the murder of Epstein on March 17,1997. Jury deadlock caused a mistrial. At a second trial in November 1997, a jury convicted Cotton of capital murder. Cotton was sentenced to death. On direct appeal, the Texas Court of Criminal Appeals upheld Cotton’s conviction and sentence. Cotton v. State, No. 72, 964 (Tex.Crim.App. June 30, 1999) (unpublished). The Supreme Court denied Cotton’s petition for writ of certiorari. Cotton v. Texas, 530 U.S. 1277, 120 S.Ct. 2747, 147 L.Ed.2d 1010 (2000). Before the Supreme Court’s denial of his petition, Cotton filed a state application for habeas corpus. The trial judge entered findings of fact and conclusions of law, which were adopted by the Court of Criminal Appeals in denying habeas relief. Ex parte Cotton, No. 49,499-01 (Tex.Crim. App. June 7, 2000)(unpublished). On June 29, 2001, Cotton filed a petition for a writ of habeas corpus in federal district court. DISCUSSION Cotton’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, 150 L.Ed.2d 9 (2001). Under AEDPA, Cotton must obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “[U]ntil 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, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). To obtain a COA, Cotton must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 123 S.Ct. at 1039; Slack, 529 U.S. at 483, 120 S.Ct. 1595. To make such a showing, he 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" }, { "docid": "11683536", "title": "", "text": "to courts rights, and the failure of the state courts to ensure he had adequate habeas counsel violated his Due Process rights. He emphasizes that constitutional violations which created a procedural default may justify the “cause” necessary to excuse a default. “Determining whether a COA should issue where the petition was dismissed on procedural grounds has two components, one directed at the underlying constitutional claim[ ] and one directed at the district court’s procedural holding.” Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. Where the district court has dismissed the petition on procedural grounds, “a COA should issue when the prisoner shows ... that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 484, 120 S.Ct. 1595. In addition, because the district court, after denying Smith’s petition on procedural grounds, nonetheless reached the merits of Smith’s constitutional claim, Smith must also show that “reasonable jurists would find the district court’s assessment of the constitutional claim[] debatable or wrong.” Id. “Each component ... is part of a threshold inquiry!;.]” Id. at 485, 120 S.Ct. 1595. As to the first threshold inquiry, we find that jurists of reason could debate whether Smith exhausted his claim for ineffective assistance based on trial counsel’s alleged failure to investigate potential mitigating evidence. A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief. Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). A federal habeas petition should be dismissed if state remedies have not been exhausted as to all of the federal court claims. Id.; see also 28 U.S.C. § 2254(b)(1)(A) (writ shall not be granted unless it appears that the applicant has exhausted state remedies). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). A federal court claim must be the “substantial equivalent” of one presented to the" }, { "docid": "23000971", "title": "", "text": "and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071 or 37.011. Tex.Code Grim. P. Ann. art. 11071 § 5(a)(~)(West 1997). After considering Nobles's Sixth Amendment claim based on counsel's failure to sufficiently introduce mitigating evidence, we fail to discern evidence of any constitutional violation whatsoever, much less a constitutional violation that impacted the jury's findings at the punishment phase. The so-called \"mitigating\" psychological evidence Nobles refers to was at best double-edged: not to present evidence of Nobles's volatile mental state, especially given counsel's decision to emphasize Nobles's non-violent history, was clearly reasonable trial strategy. See Black, 962 F.2d at 403 (finding that, where counsel chose to emphasize defendant's non-violent history, decision not to present all evidence tending to negate “deliberateness” element not unreasonable); see also Green, 116 F.3d at 1123. Even assuming counsel’s deficient performance, Nobles could not in any case demonstrate prejudice, given that the evidence of his childhood trauma and history of mental illness was cumulative of other evidence actually presented during the punishment phase. We thus find that a Texas court, presented with a successive state habeas petition on this claim, would find it barred under article 11.071 § 5(a). Given that article 11.071 is “a new statute, largely uninterpreted by state eases,” we provide an alternate basis for applying the doctrine of procedural default. See Emery v. Johnson, 123 F.3d 213, 217-18 (5th Cir.1997); Mangaroo v. Nelson, 864 F.2d 1202, 1204 n. 2 (5th Cir.1989). The Texas abuse-of-writ doctrine prohibits a second habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition. See Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App.1994)(en banc)(plurality opinion). That doctrine represents an adequate state procedural bar for purposes of federal habeas review. See Emery, 123 F.3d at 217-18; Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.1995). Given that Nobles" }, { "docid": "23586987", "title": "", "text": "Id. (emphasis added); see Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.) (quoting Slack), cert. denied, — U.S. -, 121 S.Ct. 400, 148 L.Ed.2d 308 (2000). In considering the claims for which Beazley requests a COA from our court, we begin with those raised for the first time in federal court (which therefore are procedurally barred) and then consider those that procedurally are properly before us. Each COA request is denied. 1. The claims found procedurally barred are discussed in subparts a. through i. of this part. For each, Beazley fails to satisfy the Slack two-prong test. Under 28 U.S.C. § 2254(b)(1)(A), a court shall not grant habeas relief unless “the applicant has exhausted the remedies available in the courts of the State”. The requirements of the exhaustion concept are simple: An applicant must fairly apprise the highest court of his state of the federal rights which were allegedly violated. Further, the applicant must present his claims in a procedurally correct manner. If, for whatever reason, an applicant bypasses the appellate processes of his state — whether through procedural default or otherwise — he will not be deemed to have met the exhaustion requirement absent a showing of one of two particulars. He must either demonstrate cause and prejudice or show that the failure to consider his claims will result in a fundamental miscarriage of justice. Deters v. Collins, 985 F.2d 789, 795 (5th Cir.1993) (emphasis added; internal quotation marks and citations omitted). Texas prohibits-successive writs except in narrow circumstances. Tex.Code Crim. Proc. Ann. art. 11.071 § 5 (Vernon Supp. 2001). Under § 5, unless Beazley presents a factual or legal basis for a claim that was previously unavailable or shows by a preponderance of the evidence that, but for a violation of the United States Constitution, no rational juror would have found for the State, Beazley is procedurally barred from returning to the Texas courts to exhaust his claims, id., and therefore is also procedurally barred in federal court. a. At the time of the murder, Beazley was three months short of his eighteenth birthday. The International Covenant" }, { "docid": "14409133", "title": "", "text": "and independent state ground that precludes federal review. Finley, 243 F.3d at 220. “If a petitioner fails to exhaust state remedies, but the court to which he would be required to return to meet the exhaustion requirement would now find the claim procedurally barred, then there has been a procedural default for purposes of federal habeas corpus relief.” Id. Since reasonable jurists could not disagree or find wrong the conclusion that Cotton’s Caldwell claim is defaulted, we deny his application for a COA on this claim. CONCLUSION With respect to Cotton’s claim that the prosecutor improperly commented on his failure to testify at trial, we grant his application for COA. We conclude, however, that the district court did not err in denying habeas relief on this claim because the prosecutor’s comment did not rise to the level of harmful error. We affirm the district court’s denial of relief on this claim. We deny Cotton’s application for COA on his other claims and as such lack jurisdiction to review the district court’s denial of habeas relief on these claims. AFFIRMED; COA DENIED. . See Barrientes v. Johnson, 221 F.3d 741, 781 (5th Cir.2000) (holding that prosecutor’s comments that \"He [the defendant] knows. He knows where the witness is as he sits there right now. He knows. He knows.” were not improper); Lucas v. Johnson, 132 F.3d 1069, 1079 (5th Cir.1998) (holding that prosecutor's comments that \"Only one person does know [the identity of the handwriting], and that's [the defendant] Henry Lee Lucas.” were not improper)." }, { "docid": "14409132", "title": "", "text": "state court and exhausted the remedies available in state court. 28 U.S.C. 2254(b) (2000); Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir.2001), cert. denied, 534 U.S. 1163, 122 S.Ct. 1175, 152 L.Ed.2d 118 (2002). Where an applicant has not presented a legal theory to the state court it is not exhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.2001). Reasonable jurists could not debate or find wrong the conclusion that Cotton cannot return to the Texas courts to present this claim. Texas’s abuse of writ doctrine prohibits the filing of a successive petition to raise this claim, absent a showing of cause, if it could have been raised in his first habeas petition. Id.; see also Tex.Code Grim. Proc. 11.071, § 5(a) (stating Texas’s abuse of writ doctrine). Cotton could have objected when the allegedly inappropriate comments were made by the judge, and he certainly could have raised the claim in his first state court petition. Thus, Texas would bar a new petition that presented his Caldwell claim. This bar constitutes an adequate and independent state ground that precludes federal review. Finley, 243 F.3d at 220. “If a petitioner fails to exhaust state remedies, but the court to which he would be required to return to meet the exhaustion requirement would now find the claim procedurally barred, then there has been a procedural default for purposes of federal habeas corpus relief.” Id. Since reasonable jurists could not disagree or find wrong the conclusion that Cotton’s Caldwell claim is defaulted, we deny his application for a COA on this claim. CONCLUSION With respect to Cotton’s claim that the prosecutor improperly commented on his failure to testify at trial, we grant his application for COA. We conclude, however, that the district court did not err in denying habeas relief on this claim because the prosecutor’s comment did not rise to the level of harmful error. We affirm the district court’s denial of relief on this claim. We deny Cotton’s application for COA on his other claims and as such lack jurisdiction to review the district court’s denial of habeas relief" }, { "docid": "13109973", "title": "", "text": "satisfy the exhaustion requirement.” Wilder, 274 F.3d at 259 (quoting Vela v. Estelle, 708 F.2d 954, 958 n. 5 (5th Cir.1983)); Henry, 327 F.3d at 432. Bagwell’s state habeas application did not allege that he was denied the right to testify at his capital murder trial or even an ineffective assistance of counsel claim raising a similar concern. At no time during the pendency of the state habeas proceeding did Bagwell seek permission to amend his petition to include such a claim. In fact, Bagwell’s state habeas proposed factual findings and conclusions of law, which included several ineffective assistance of counsel claims, did not set forth a claim that he was denied the right to testify. Bagwell concedes as much. Nev ertheless, Bagwell contends that his testimony, during the state habeas evidentiary hearing, concerning his desire to testify sufficiently presented the issue for review. Bagwell’s factual testimony regarding his dissatisfaction with trial counsel does not satisfy our exhaustion requirement. See Gray v. Netherlands, 518 U.S. 152, 162, 116 S.Ct. 2074, 2081, 135 L.Ed.2d 457 (1996) (concluding that petitioner does not satisfy the § 2254(b) exhaustion requirement “by presenting the state courts only with the facts necessary to state a claim for relief’). Since Bagwell “advance[d] in federal court an argument based on a legal theory distinct from that relied upon in state court ... [he] therefore failed to satisfy the exhaustion requirement.” Nobles, 127 F.3d at 422 (citations and quotations omitted). Second, Texas courts would find Bag-well’s claim procedurally barred. Texas does not generally permit successive habe-as applications. See Tex.Code CRiM. PROC. ANN. art. 11.071, § 5 (Vernon Supp.2003). Article 11.071 does, however, provide three exceptions: (1) the claim could not have been presented in the initial application because the factual or legal basis of the claim was unavailable at that time; (2) the petitioner would not have been convicted absent the constitutional violation; or (3) the jury would not have answered in the state’s favor on a special issue absent the constitutional violation. Id. at § 5(a)(1)-(3). Bagwell does not qualify for any of these limited exceptions. Bagwell was" }, { "docid": "14409130", "title": "", "text": "We do not agree that counsel’s failure to object to the comments constituted deficient performance under Strickland. The conduct of a judge violates due process “only if the judge appears to predispose the jury toward a finding of guilt or to take over the prosecutorial role.” Derden v. McNeel, 978 F.2d 1453, 1459 (5th Cir.1992) (en banc). The judge here outlined the history of capital punishment in Texas and described the limited circumstances under which the state can seek the death penalty. He expressed no opinion on the death penalty either generally or as it related to Cotton’s crime. Nor did the trial judge encourage the jury to impose the death penalty in this case or even remotely suggest they should feel historically obliged to impose a death sentence should they find Cotton guilty. The comments simply provided a brief introduction to the Texas capital punishment scheme before the attorneys began conducting in dividualized voir dire examinations. These comments cannot be construed as predisposing the jury to impose a death sentence and violating Cotton’s due process right. Reasonable jurists could not debate or find wrong that counsel did not unreasonably decline to object to these comments. In any event, Cotton was not prejudiced by his counsel’s failure to object. Throughout voir dire and during closing arguments the court and counsel repeatedly informed the jury that whether Cotton received a death sentence would be based on the jury’s answers to the special issues submitted to them at the end of the punishment phase of the trial. Cotton’s counsel was not constitutionally ineffective. In the absence of ineffective assistance, Cotton cannot establish cause to excuse the procedural default of his due process claim. Reasonable jurists could not debate or find wrong the district court’s conclusion that Cotton’s claim is proeedurally barred. Therefore, we deny his application for a COA on his Due Process claim. Additionally, Cotton is not entitled to a COA on his Caldwell claim. Cotton did not raise this theory during his state habeas proceedings. Federal courts cannot grant habeas relief unless the applicant has presented the claims to the" }, { "docid": "23000972", "title": "", "text": "prejudice, given that the evidence of his childhood trauma and history of mental illness was cumulative of other evidence actually presented during the punishment phase. We thus find that a Texas court, presented with a successive state habeas petition on this claim, would find it barred under article 11.071 § 5(a). Given that article 11.071 is “a new statute, largely uninterpreted by state eases,” we provide an alternate basis for applying the doctrine of procedural default. See Emery v. Johnson, 123 F.3d 213, 217-18 (5th Cir.1997); Mangaroo v. Nelson, 864 F.2d 1202, 1204 n. 2 (5th Cir.1989). The Texas abuse-of-writ doctrine prohibits a second habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition. See Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App.1994)(en banc)(plurality opinion). That doctrine represents an adequate state procedural bar for purposes of federal habeas review. See Emery, 123 F.3d at 217-18; Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.1995). Given that Nobles has cited no cause for his failure to raise his Sixth Amendment claim in his initial state habeas petition, the Texas abuse-of-writ doctrine would constitute an independent and adequate bar to a successive habeas petition. Thus, whether we consider article 11.071 or the abuse-of-writ doctrine, Nobles has proeedurally defaulted his unexhausted Sixth Amendment claim. 4. The AEDPA amended 28 U.S.C. § 2254(b) to allow a federal court to deny an application on the merits, “notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2)(West 1997). We note that amended § 2254(b)(2) is permissive (“[a]n application ... may be denied .,.”). The district court, after finding Nobles’s claim proeedurally defaulted, found in the alternative that his claim would not have succeeded on the merits. We review the district court’s resolution of this mixed question of law and fact de novo. See Green, 116 F.3d at 1122. We agree with the district court that Nobles’s allegations fail to demonstrate his counsel’s deficient performance, and that, in" }, { "docid": "23703217", "title": "", "text": "and his testimony at the federal habeas evidentiary hearing, Henderson requests a COA from this court for his claim that the prosecutors knowingly presented the perjured testimony of Williams. He also seeks a COA for his claim that his due process rights were violated by the prosecution’s failure to disclose the derivative use immunity provision in Williams’s plea negotiation agreement. Henderson argues that the benefit Williams received as the result of the reduced charge and 60-year sentence for Lennox’s murder would have been completely negated had he not been granted immunity from prosecution for the aggravated robbery in Dallas and the unauthorized use of Lennox’s vehicle, because he could have been sentenced to life in prison without parole had he been convicted of those crimes. He thus contends that the derivative use immunity provision of the plea agreement was a significant benefit that should have been disclosed to the defense. Henderson did not raise these claims on direct appeal or in his initial state habeas application. The Texas Court of Criminal Appeals held that these claims, presented for the first time in Henderson’s second state habeas application, were barred by the Texas abuse of the writ doctrine. The district court therefore held that the claims were procedurally defaulted, and further denied Henderson’s request for a COA on these claims. Henderson now requests a COA from this court. “[UJntil 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, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). To obtain a COA, Henderson must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To make such a showing, he 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.” Miller-El, 123 S.Ct. at" }, { "docid": "23585086", "title": "", "text": "were procedurally barred because, if he tried to exhaust them in a proper manner, they would be barred by Tex.Code Crim. Proo. Ann. art. 11.071, § 5(a) (Vernon Supp.1997), which prohibits the filing of subsequent or untimely habeas applications, absent cause or actual innocence. See Ex parte Davis, 947 S.W.2d 216 (Tex.Crim.App.1996) (en banc) (upholding the constitutionality of article 11.071). In a habeas context, we review the district court’s determinations of law de novo and its findings of facts for clear error. See Dison v. Whitley, 20 F.3d 185, 186 (5th Cir.1994). Because article 11.071 is a new statute that is largely uninterpreted by state eases, we instead consider whether we should affirm on the basis of the abuse-of-the-writ doctrine. We may affirm a judgment on any ground supported by the record. See Mangaroo v. Nelson, 864 F.2d 1202, 1204 n. 2 (5th Cir.1989). , A second habeas petition is an abuse of the writ if the prisoner urgés grounds that could have been, but were not, raised in his first habeas petition. See Russell v. Collins, 944 F.2d 202, 205 (5th Cir.1991) (per curiam). Such a doctrine, which the federal courts recognize, encourages efficient justice by requiring a prisoner to present all claims for relief at once. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454,. 1469-70, 113 L.Ed.2d 517 (1991). The Texas courts have recognized this doctrine for over twenty years. See, e.g., Ex parte Carr, 511 S.W.2d 523, 525-26 (Tex.Crim.App.1974). An abuse of the writ can qualify as a procedural bar. See Murch v. Mottram, 409 U.S. 41, 45-46, 93 S.Ct. 71, 73-74, 34 L.Ed.2d 194 (1972) (per curiam). A procedural bar is not adequate, however, unless it is applied “strictly or regularly” to the “vast majority of similar claims.” Amos v. Scott, 61 F.3d 333, 339 (5th Cir.), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995). Historically, Texas courts have failed to apply the abuse-of-the-writ-doctrine in a strict or regular manner, and, therefore, we have refused to honor it. See Lowe v. Scott, 48 F.3d 873, 876 (5th Cir.1995). This" }, { "docid": "23703226", "title": "", "text": "(Tex.Crim.App.2002). Henderson therefore contends that he has no avenue of redress other than the federal courts. He contends further that there are no published Texas cases addressing the unique circumstances of his case. Finally, he asserts that the application of the abuse of the writ doctrine to the circumstances of his case eviscerates the doctrine’s purpose of ensuring that a death row inmate has one full and fair opportunity to present his claims and the purpose of achieving a balance between the convicted prisoner’s constitutional rights and society’s interest in the finality of criminal convictions. Henderson has not demonstrated the existence of “exceptional circumstances” sufficient to persuade us that jurists of reason would find it debatable whether the district court was correct in its procedural ruling that the Texas abuse of the writ doctrine is an adequate procedural bar. It is well-settled that “infirmities in state habeas proceedings do not constitute grounds for federal habeas relief.” Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir.1992). Furthermore, “ineffective assistance of habeas counsel cannot provide cause for a procedural default.” Martinez v. Johnson, 255 F.3d 229, 241 (5th Cir.2001). As the district court noted, the Texas abuse of the writ doctrine is firmly established and regularly, followed, and it was strictly and regularly applied at the time Henderson filed his first state habeas application. Reasonable jurists would not find debatable the district court’s ruling on the adequacy of this doctrine. 2 Cause and Prejudice Regarding Williams’s alleged perjured testimony, the district court held that Henderson had not established cause for the procedural default because the evidence showed a lack of due diligence on the part of his initial state habeas counsel, who made no attempt to interview Williams. Even if cause had been shown, the district court found Williams’s recantation testimony and accusations against the prosecutors lacking in credibility. The district court noted that the Red River County District Attorney, the Special Prosecutor, and Williams’s defense counsel all testified at the federal evidentiary hearing that Williams was an eager witness, who cooperated so that he could get the best possible deal for" } ]

[ { "docid": "22651181", "title": "", "text": "these evidentiary burdens. It, therefore, reversed the judgment of the District Court and remanded the case for computation of backpay. Because the decision of the Court of Appeals as to the burden of proof borne by the defendant conflicts with interpretations of our precedents adopted by other Courts of Appeals, we granted certiorari. 447 U. S. 920 (1980). We now vacate the Fifth Circuit’s decision and remand for application of the correct standard. II In McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id., at 802. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804. The nature of the burden that shifts to the defendant should be understood in light of the plaintiff’s ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U. S. 24, 25, n. 2 (1978); id., at 29 (Stevens, J., dissenting). See generally 9 J. Wigmore, Evidence § 2489 (3d ed. 1940) (the burden of persuasion “never shifts”). The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question. The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a proponderence of the evidence that she applied for an available position for which she was qualified, but was rejected" } ]

[ { "docid": "2389965", "title": "", "text": "nonmoving party. For summary judgment in a Title VII case alleging discriminatory treatment, the Supreme Court has established the basic allocation of burdens and order of presentation of proof: First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden then shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a mere pretext for discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804, 93 S.Ct. 1817, 1824, 1825, 36 L.Ed.2d 668 (1973)). The Supreme Court in McDonnell Douglas then set out four factors that a Title VII claimant must show to establish a prima facie case of impermissible discrimination in hiring. McDonnell Douglas, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). These factors also have been adapted to the termination context, Rowe v. Kidd, 731 F.Supp. 534, 536 (D.D.C.1990); Keller v. Association of Am. Medical Colleges, 644 F.Supp. 459, 462 (D.D.C.1985), and to religious discrimination. Singh v. Bowsher, 609 F.Supp. 454 (D.D.C.1984) (factors applied to racial and religious discrimination). The essential elements of a prima facie case of impermissible discrimination are: (1) plaintiff is a member of a protected class; (2) she was qualified for continued employment and was satisfying the normal requirements of her job; (3) she was terminated; and (4) she was either replaced by a person not in the protected class, or such a person with comparable qualifications and work records was not terminated. See Rowe, 731 F.Supp. at 536; Keller, 644 F.Supp. at 462; Singh, 609 F.Supp. at 464. The McDonnell Douglas burden shifting scheme was recently reaffirmed by the Supreme Court, and it is the test the court" }, { "docid": "22169641", "title": "", "text": "was discriminatory. As a preliminary matter, the district court would have to determine if the process was fair. This determination would include an examination of whether Kline’s race or age negatively impacted TVA’s decision. The district court’s framing of the issue following remand was consistent with this court’s instructions. We do not agree with Kline’s assessment that the district court’s definition of the issue placed an impossible burden on him. , C. We now turn to Kline’s second proffered assignment of error. Kline contends that the district court erred in requiring him to prove “pretext plus” in order to prevail on his claim of employment discrimination. He argues .that the pretext plus approach to employment discrimination cases, which requires a. direct showing of discrimination, in addition to proof of pretext, was rejected by the Supreme Court in St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 4Ó7 (1993) (hereinafter “Hicks”). As a preliminary matter, it is necessary to examine the relevant burdens of proof in employment discrimination cases. 1. The burdens of proof in employment discrimination cases were first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later clarified by Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under these cases Title VII cases require three stages of proof. First, the plaintiff must prove a prima facie case of discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (1973)). If the plaintiff establishes its prima facie case, the burden then shifts to the defendant to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). If the defendant carries 'this burden, the plaintiff must prove that the proffered reasons were pretextual. Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825). Pretext is established by a direct showing that a discriminatory reason more likely motivated the employer or by an indirect" }, { "docid": "15333676", "title": "", "text": "when deciding whether a plaintiff alleging unlawful employment discrimination has presented sufficient evidence to survive a summary judgment motion, we must consider the evidence in light of the three-part procedure set out for such claims by the Supreme Court’s decision in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as well as the Court’s elaborations on that procedure in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and Saint Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). In McDonnell Douglas, the Court established a three-part protocol governing the order and burdens of proof in cases alleging discrimination in violation of Title VII. First, the complainant must establish a pri-ma facie case of prohibited discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1825. If he succeeds, the burden then shifts to the employer to articulate legitimate, nondiscriminatory reasons for the challenged action. See id. Should the employer succeed in presenting such reasons, the burden then returns to the complainant, who must prove that the employer’s proffered reasons for the challenged actions were merely a pretext for unlawful discrimination. See id. at 804-05, 93 S.Ct. at 1825-26. In Burdine, the Court held that in producing nondiscriminatory reasons for its challenged action, the employer is not obligated to support these reasons with objective evidence sufficient to satisfy the “preponderance of the evidence” standard, see Burdine, 450 U.S. at 259-60, 101 S.Ct. at 1096-97, and that the plaintiff at all times retains the ultimate burden of persuasion. See id. at 253, 101 S.Ct. at 1093. In the litigation underlying Saint Mary’s Honor Center v. Hicks, Melvin Hicks sued his former employer, Saint Mary’s Honor Center, alleging that Saint Mary’s had discharged him because of his race, thereby violating Title VII. See Hicks, 509 U.S. at 505, 113 S.Ct. at 2746. After a full bench trial, the district court found that the reasons the employer had proffered as nondiscriminatory motivations for its decision to terminate the plaintiff were not" }, { "docid": "1634223", "title": "", "text": "the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext.” Torgerson, 643 F.3d at 1044. Under McDonnell Douglas, an employee first establishes a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden of production then shifts to the employer to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. See also Torgerson, 643 F.3d at 1047 (“The burden to articulate a nondiscriminatory justification is not onerous, and the explanation need not be demonstrated by a preponderance of the evidence.”). If the employer offers such a reason, the burden shifts back to the plaintiff to evidence that the employer’s proffered explanation is pretext for unlawful discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. A plaintiff provides sufficient evidence of pretext by showing that “the employer’s explanation is unworthy of credence ... because it has no basis in fact.... [or] by persuading the court that a [prohibited] reason more likely motivated the employer.” Torgerson, 643 F.3d at 1047 (second alteration in original). See also Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (plaintiff overcomes summary judgment by showing employer’s proffered explanation is unworthy of credence). “At all times, the plaintiff retains the burden of persuasion to prove that age was the ‘but-for’ cause of the termination.” Rahlf, 642 F.3d at 637, citing Gross, 557 U.S. at 176-77, 129 S.Ct. 2343. B. Here, the commissioners did not directly reference Hilde’s age in their hiring process. Because Hilde fails to show a “specific link” to age discrimination, the McDonnell Douglas analysis applies. See Torgerson, 643 F.3d at 1046. The parties agree that Hilde satisfies the first three prima facie elements: he was (1) over 40 at the time of the challenged decision, (2) not hired (or promoted), and (3) qualified for the job. Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir.2011) (fourth element whether employer hired younger person to fill position)." }, { "docid": "9765812", "title": "", "text": "of employment, because of such individual’s race, color, religion, sex, or national origin. Plaintiffs principal claims here are based on the disparate treatment theory of discrimination under Title VII. The Supreme Court very recently in St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) clarified the requirements for proving a claim of disparate treatment under Title VII that were established in McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817 (1973) and refined in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In McDonnell Douglas, the Supreme Court established a three-part “order and allocation of proof in a private, non-class action challenging employment discrimination.” McDonnell Douglas, 411 U.S. at 800, 93 S.Ct. at 1823: First, the plaintiff must establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. at 1824. If the plaintiff establishes a prima facie case, then the burden of production shifts to the employer to show “some legitimate, nondiscriminatory reason” for the employment decision. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Finally, if the defendant meets its burden, plaintiff must “be afforded a fair opportunity to show that [the employer’s] stated reason for [the plaintiff’s] rejection was in fact pretext.” McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. In Burdine, the Supreme Court reviewed the three-step process established in McDonnell Douglas and elaborated upon the second step. The Court held that the defendant’s burden of providing a nondiscriminatory reason for its employment decision is not a burden of persuasion but a burden of production. In other words, the defendant need not prove its legitimate, nondiscriminatory reason, merely articulate it. Burdine, 450 U.S. at 256-60, 101 S.Ct. at 1095-97. Most recently, in Hicks, the Court settled a divergence among the circuits regarding the meaning of the third prong of the McDonnell Douglas test. Because the burden of persuasion is borne at all times by the plaintiff, the Court concluded that at the third prong of the test, plaintiff must not only prove that defendant’s legitimate, nondiscriminatory" }, { "docid": "23678818", "title": "", "text": "v. Waters, 438 U.S. 567, 579-80, 98 S.Ct. 2943, 2950-51, 57 L.Ed.2d 957 (1978), the Supreme Court noted that a prima facie case in this context “is simply proof of actions taken by the employer from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations.” If the plaintiff establishes a prima facie case, the burden then shifts to the employer “to articulate some legitimate, nondiscriminatory reason” for the challenged action.’ McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; accord St. Mary’s Honor Center v. Hicks, — U.S. -, ---, 113 S.Ct. 2742, 2747-48, 125 L.Ed.2d 407 (1993) (defendant must produce evidence which, if believed, would support a finding that unlawful discrimination was not the cause of challenged action). If the employer succeeds in doing so, the burden returns to the plaintiff employee, who can then prevail only if she can show that the reason offered by the employer was not the real reason for the challenged action, but merely a “pretext” for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. Throughout a Title VII case, the plaintiff retains the ultimate burden of persuasion to prove, by a preponderance of the evidence, that the employer intentionally discriminated against her. Loyd v. Phillips Bros., Inc., 25 F.3d 518, 522 (7th Cir.1994); St. Mary’s, — U.S. at - - -, 113 S.Ct. at 2747-50. The determination of what constitutes a Title VII prima facie case is a question of law. Loyd, 25 F.3d at 522. In the wage discrimination context, neither the Supreme Court nor this Circuit has established a definitive standard, but we have held that a prima facie case does require a plaintiff such as Johnson to produce evidence that she was paid less than a similarly-situated male or males. Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir.1993). Johnson’s claim of wage discrimination for academic years 1990-91 and 1991-92 falters on this fundamental requirement. The “similarly-situated” male to which Johnson compares herself" }, { "docid": "8685069", "title": "", "text": "has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), rev’d on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14, 18 (D.D.C.1993). Lastly, the court should construe a pro se plaintiffs filings liberally. Richardson v. United States, 193 F.3d 545, 548 (D.C.Cir.1999). B. The McDonnell Douglas Framework To prevail on a claim of discrimination under Title VII, a plaintiff must follow a three-part burden-shifting analysis. McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Supreme Court explained this scheme as follows: First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.... The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 (citations omitted)). Thus, the plaintiff must first establish a prima-facie case of prohibited discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Aka, 156 F.3d at 1288; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 140-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The plaintiff need not, however, establish a pri-ma-facie case in the complaint. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). To establish a prima-facie ease of race discrimination, the plaintiff must show that: (1)" }, { "docid": "23398682", "title": "", "text": "one position to be eliminated through involuntary termination. Jim Mattern, Director of Human Resources, analyzed what each of his employees did, could do, and wanted to do. Based upon what he believed was best for his department and the company, Mat-tern decided to terminate Bashara, who was manager of insurance and benefits. At the time, Bashara was fifty-six years old. Bash-ara’s responsibilities were reassigned to a number of individuals, with most of his duties being allocated to a thirty-seven-year-old employee. II. We will affirm the grant of a summary judgment motion if the evidence, viewed in the light most favorable to the nonmoving 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, e.g., Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993). The ADEA forbids an employer from discharging an employee within the age-protected group (40 and over) because of the employee’s age. 29 U.S.C. §§ 623(a)(1), 631(a). If the plaintiff presents no direct evidence of age discrimination, the Title VII burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is followed. See, e.g., Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1164 (8th Cir.1985). Under the McDonnell Douglas three-step framework, the plaintiff has the initial burden of establishing a prima facie case. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the plaintiff makes a prima facie showing, thus raising an inference of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff’s discharge. Id. If the defendant meets this burden, the plaintiff must prove that the defendant’s reason is merely a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825. In circumstances not involving a reduction in force, a plaintiff may make a prima facie case of age discrimination by establishing (1) that he is within the protected age group; (2) that he met applicable job qualifications; (3) that he was discharged; and (4) that, after his discharge, the" }, { "docid": "14810608", "title": "", "text": "Wards Cove, — U.S. at -, 109 S.Ct. at 2126. Plaintiffs may raise a claim of disparate treatment to challenge intentional discriminatory acts. The basic allocation of burdens and order of proof in disparate treatment cases is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981): First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” [McDonnell Douglas, 411 U.S.] at 802, 93 S.Ct. at 1824. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 802, 93 S.Ct. at 1825. The nature of the burden that shifts to the defendant should be understood in light of the plaintiff’s ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff ... The McDonnell Douglas division of intermediate eviden-tiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94 (footnote and citations omitted). The proof a plaintiff must put forward to establish a prima facie case varies according to the factual context of her claims. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978) (test is neither mechanistic nor rigid). The elements of proof are well established in the termination and promotion contexts. The exact elements necessary to establish a prima facie case of other claims are less defined. However, the court’s goal in defining the precise elements is “merely”" }, { "docid": "22947363", "title": "", "text": "an individual attempting to prove intentional discrimination. In this case, Ms. Hong relies on the indirect, burden-shifting method of proof. Under the McDonnell Douglas framework, the plaintiff must first establish, by a preponderance of the evidence, a prima facie case of employment discrimination. Id. at 802, 93 S.Ct. at 1824. Once established, the prima facie case creates a rebuttable presumption that the employer’s actions, if unexplained, were the result of impermissible factors. Chesser v. State of Illinois, 895 F.2d 330, 333 n. 3 (7th Cir.1990). At this point, the defendant must explain its actions or lose, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981); the burden of production therefore shifts to the employer “to articulate some legitimate, nondiscriminatory reason” for the plaintiffs treatment. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the defendant carries its burden, the presumption of discrimination drops from the case, United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983), and the plaintiff must then show, again by a preponderance of the evidence, that she is a victim of intentional discrimination, the defendant’s stated reason for dismissal being nothing more than a mere pretext. McDonnell Douglas, 411 S.Ct. at 804, 93 S.Ct. at 1825. See also Villa v. City of Chicago, 924 F.2d 629, 631 (7th Cir.1991). At all times, of course, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains with the plaintiff. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. To establish a prima facie case of national origin discrimination, the plaintiff is required to show that (1) she is a member of a protected class, (2) she was doing her work well enough to meet her employer’s legitimate expectations, (3) despite her performance, she was discharged, and (4) her employer sought a replacement for her. Villa, 924 F.2d at 631. Without a prima facie ease, the plaintiff cannot withstand summary judgment. See Gilty v. Village of Oak Park," }, { "docid": "4430586", "title": "", "text": "the governing substantive law recognize as relevant. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. Since this case involves claims of disparate treatment on the bases of race and sex, the material facts are those which speak to the elements of the analytical framework laid down in Title VII by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973), and its progeny. It is necessary for plaintiff to indicate that there is some evidence to demonstrate that her race and gender played a role in the challenged agency actions. First, plaintiff must prove a prima facie case of discrimination by a preponderance of the evidence. Proof of a prima facie case gives rise to a rebuttable presumption or inference of discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). In order to establish a prima facie case, Perkins must show (1) that she belongs to a class of persons protected by Title VII (2) that she applied for and was qualified for the promotion for which she was not selected; (3) that despite her qualifications, she was rejected; and (4) that the plaintiff was rejected at the same time that another employee of similar qualifications who was not a member of plaintiffs group was selected. McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824; Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir.1981). Second, if plaintiff succeeds in proving this prima facie case, the burden then shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The employer’s burden is not one of persuasion, but one of production. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Third, if defendant meets this burden, plaintiff is then granted an opportunity to prove by a preponderance of the evidence that the facially legitimate reason offered by the defendant was not" }, { "docid": "11330263", "title": "", "text": "because the percentage of blacks hired approximated the percentage of black applicants. 2. Disparate Treatment Alternatively, Plaintiffs seem to assert that even if discrimination was not Defendant’s “standard operating procedure,” they were discriminated against individually. Such claims of disparate treatment are governed by the McDonnell Douglas paradigm. To overcome summary judgment, the plaintiff bears the onus of proving by a preponderance of the evidence that a prima facie case of discrimination exists. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). To demonstrate a prima facie case of discrimination for failure to hire, plaintiff must show: “(1) that he belongs to a protected class; (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 of similar qualifications.” Earley v. Champion Int’l Corp., 907 F.2d 1077, 1082 (11th Cir.1990). See Coutu v. Martin County Bd. of County Comm’rs, 47 F.3d 1068, 1073 (11th Cir.1995). Plaintiffs establishment of a prima facie case of discrimination raises a rebuttable presumption that the employment decision was based on a criterion proscribed by Title VII. The employer may rebut this presumption by “articulating a legitimate, nondiscriminatory reason” for its decision. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. If the employer produces sufficient evidence of a legitimate nondiscriminatory reason, then the burden of proof shifts back to the plaintiff to prove that the reason proposed by the employer is a mere pretext designed to disguise the proscribed discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Notwithstanding the shifting burdens of proof, at all times the plaintiff bears the “ultimate burden of persuading the [trier of fact] that he has been the victim of" }, { "docid": "19191235", "title": "", "text": "Grecco v. Spang & Co., 527 F.Supp. 978 (W.D.Pa. 1981). This court joins the above courts and will apply the Title VII disparate impact test to ADEA. The court will thus consider plaintiffs’ claims of sex discrimination and age discrimination under both the disparate treatment and disparate impact tests. A. Disparate Treatment According to Smithers v. Bailar, 629 F.2d 892, 898 (3d Cir.1980), in a disparate treatment case, the plaintiff has the burden to prove that his treatment was caused by purposeful or intentional discrimination. The plaintiff need not prove that age or sex was the employer’s “sole or exclusive” consideration; he must, however, prove by a preponderance of the evidence that it made a difference in the decision to discharge him. The test to apply is the one set forth in McDonnell Douglas. The plaintiff has the initial burden to establish a prima facie case of unlawful discrimination. To do this, plaintiff must show that he is a member of the protected class and that he was laid off from a job for which he was qualified while others not in the protected class were treated more favorably. The burden then shifts to the employer to articulate “some legitmate, nondiscriminatory reason” for its treatment of the employee. McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824. If the employer presents evidence of a lawful justification, the plaintiff must then show that this asserted reason “was merely a pretext for unlawful discrimination.” Massarsky, supra, at 118. The burden of persuasion always remains with the plaintiff. All the defendant must do is introduce sufficient evidence to create a genuine factual issue concerning the existence of a legitimate justification for the discharge. 1. Sex discrimination: Disparate Treatment Regarding the creation and ultimate termination of the reduced-hour classification, plaintiffs have not made a prima facie case of discriminatory treatment for reason of their sex. Plaintiffs, all women, are in a protected class under Title VII and it appears undisputed that plaintiffs were not discharged because they were deemed unqualified for their work. One stipulated fact in the Final Pre-Trial Order states" }, { "docid": "23119608", "title": "", "text": "DEA’s driving requirement as a consequence of religious discrimination. We agree. A. Proof in a Title VII Action and Summary Judgment In actions brought under Title VII, the plaintiff bears the burden of initially proving a prima facie case. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). To establish a prima facie case, the plaintiff must show that he or she: (1) was a member of a protected class; (2) was qualified for the position; (3) was discharged; and (4) the discharge occurred in circumstances giving rise to an inference of discrimination. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). The burden then shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s [discharge].” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Once the defendant advances evidence of a nondiscriminatory basis for its action, the burden again shifts to the plaintiff, who ultimately must establish by a preponderance of the evidence that the nondiscriminatory reasons advanced for plaintiff’s rejection are a pretext for discrimination. See Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. A court may grant summary judgment only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “Where, as here, the nonmovant bears the ultimate burden to prove at trial that the defendant discriminated, [ ]he may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial.” Montana v. First Fed.Sav. & Loan Ass’n, 869 F.2d 100, 103 (2d Cir.1989) (citations omitted). Further, in ruling on a summary judgment motion," }, { "docid": "12458048", "title": "", "text": "Employment Opportunity Commission (EEOC) claiming he had been denied “promotional opportunities” and specifically referring to DiGiovanni’s selection in 1984 for the accountant position. The EEOC issued a Right to Sue letter on March 11, 1985. Smith filed the complaint in the instant case on May 1,1985, alleging, inter alia, that American Express had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In granting American Express’s motion for summary judgment, Judge Kram found that, although Smith had made out a pri-ma facie ease of discrimination, American Express had articulated a legitimate, nondiscriminatory reason for promoting Di-Giovanni instead of Smith. Thus, the bur den shifted back to Smith to prove that the reasons offered by American Express for his rejection were not its true reasons, but were a “pretext for ... discrimination.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973). Judge Kram concluded that Smith failed to satisfy this burden by coming forward with “affidavits, deposition testimony or any other sworn documents containing admissible evidence” to refute American Express’s claim. II. In order to prevail in a Title VII action a plaintiff must first prove by a preponderance of the evidence a prima facie case of discrimination. If he is successful, the burden shifts to the defendant 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 defendant succeeds in establishing such a reason, the plaintiff, who retains the ultimate burden of persuasion, must have “an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Summary judgment is ordinarily inappropriate in a Title VII action where a plaintiff has established a prima facie case. See Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir.1985). However, as" }, { "docid": "4008917", "title": "", "text": "Ins. Co., 6 F.3d 836, 842 (1st Cir.1993) (age discrimination), cert. denied, — U.S. —, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). Under the McDonnell Douglas framework, plaintiffs bear the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. In reduction-in-force cases, the plaintiff establishes the prima facie case by demonstrating that he or she (1) was a member of a protected class, (2) met the employer’s legitimate job-performance expectations, (3) was laid off, and (4) that the employer either did not treat members of the protected class neutrally or retained persons not within the protected class in the same position. See LeBlanc, 6 F.3d at 842. Once the plaintiff establishes a pri-ma facie case, a presumption arises that the employer unlawfully discriminated against the plaintiff. Hicks, — U.S. at —, 113 S.Ct. at 2747; LeBlanc, 6 F.3d at 842. This presumption “places upon the defendant the burden of producing an explanation to rebut the prima facie case — i.e., the burden of ‘producing evidence’ that the adverse employment actions were taken ‘for a legitimate, nondiscriminatory reason.’ ” Hicks, — U.S. at —, 113 S.Ct. at 2747 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). While the burden of production shifts to the defendant during this second step, the burden of persuasion remains on the plaintiff. Hicks, — U.S. at —, 113 S.Ct. at 2747. If the defendant “artieulate[s] some legitimate, nondiscriminatory reason for the plaintiff’s [layoff],” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, then the presumption of discrimination established by the plaintiff’s prima facie showing “drops out of the picture.” Hicks, — U.S. at —, 113 S.Ct. at 2749. The burden of production then shifts back to the plaintiff, who is given an opportunity to show that the defendant’s stated reason for laying off the plaintiff was a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. “The defendant’s ‘production’ (whatever its persuasive effect) having been made, the" }, { "docid": "4008918", "title": "", "text": "evidence’ that the adverse employment actions were taken ‘for a legitimate, nondiscriminatory reason.’ ” Hicks, — U.S. at —, 113 S.Ct. at 2747 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). While the burden of production shifts to the defendant during this second step, the burden of persuasion remains on the plaintiff. Hicks, — U.S. at —, 113 S.Ct. at 2747. If the defendant “artieulate[s] some legitimate, nondiscriminatory reason for the plaintiff’s [layoff],” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, then the presumption of discrimination established by the plaintiff’s prima facie showing “drops out of the picture.” Hicks, — U.S. at —, 113 S.Ct. at 2749. The burden of production then shifts back to the plaintiff, who is given an opportunity to show that the defendant’s stated reason for laying off the plaintiff was a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. “The defendant’s ‘production’ (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven ‘that the defendant intentionally discriminated against [him].’ ” Hicks, — U.S. at —, 113 S.Ct. at 2749 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093) (alterations in Hicks); see also LeBlanc, 6 F.3d at 843 (applying Hicks to age discrimination cases). Thus, once the employer articulates a legitimate, nondiscriminatory reason for laying off the plaintiff, to avoid summary judgment, the plaintiff must introduce sufficient evidence to support two findings: (1) that the employer’s articulated reason for laying off the plaintiff is a pretext, and (2) that the true reason is discriminatory. Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1958, 131 L.Ed.2d 850 (1995). While the plaintiff may rely on the same evidence to prove both pretext and discrimination, the evidence must be sufficient for a reasonable factfinder to infer that the employer’s decision was motivated by discriminatory animus. Id. %. Application We shall assume, as the district court did," }, { "docid": "12458049", "title": "", "text": "sworn documents containing admissible evidence” to refute American Express’s claim. II. In order to prevail in a Title VII action a plaintiff must first prove by a preponderance of the evidence a prima facie case of discrimination. If he is successful, the burden shifts to the defendant 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 defendant succeeds in establishing such a reason, the plaintiff, who retains the ultimate burden of persuasion, must have “an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Summary judgment is ordinarily inappropriate in a Title VII action where a plaintiff has established a prima facie case. See Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir.1985). However, as the non-moving party, Smith had the burden of coming forward with specific facts showing the existence of a genuine issue for trial. Fed.R.Civ.P. 56(c). Here Smith failed to supply any evidence to support a finding that his employer’s justifications were merely a pretext for discrimination. Although Smith’s complaint and other papers refer to several instances of alleged discrimination, on appeal he challenges only the district court’s conclusion that American Express established a legitimate business reason for his rejection. American Express demonstrated legitimate reasons for preferring DiGiovanni to Smith, effectively rebutting Smith’s prima facie case. Not only did DiGiovanni have a higher job performance rating, but she also had superior interpersonal skills. William Taylor, the Comptroller of the EROC and the individual to whom Smith’s supervisor reports, explained in his affidavit that he observed Smith on several occasions “talking down to his co-workers in a condescending manner” and “yelling at other employees.” Smith argues that Judge Kram erred in granting summary judgment because a triable issue of fact regarding the “validity of [American Express’s] employee rating" }, { "docid": "4984807", "title": "", "text": "to an employee’s promotion or termination, such mistaken belief does not provide the basis for a racial discrimination action under Title VII. See Jefferies v. Harris Cty. Community Action Association, 615 F.2d 1025, 1036 (5th Cir. 1980); Corley v. Jackson Police Dept., 566 F.2d 994, 1003 (5th Cir. 1978); Turner v. Texas Instruments, Inc., 555 F.2d 1251 (5th Cir. 1977). 16. Absent direct or circumstantial evidence of discriminatory motive, Womack may raise an “inference of discrimination” by proving a prima facie case of discrimination by a preponderance of the evidence as outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The Supreme Court recently clarified the operation of the McDonnell Douglas requirements in Texas Dept. of Community Affairs v. Burdine, - U.S. -, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981): In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id., at 802, 93 S.Ct. at 1824. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804, 93 S.Ct. at 1825. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. [Citation omitted] The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that [he] applied for an available position, for which [he] was qualified, but was rejected under circumstances which give rise" }, { "docid": "5239758", "title": "", "text": "v. Burdine, the Supreme Court refined the allocation of burdens and order of proof in a Title VII suit, first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” [McDonnell Douglas, 411 U.S.] at 802. [93 S.Ct. at 1824] Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 804. 450 U.S. at 252-253, 101 S.Ct. at 1093. As we emphasized in Norma Miller v. WFLI Radio, Inc., 687 F.2d 136 (6th Cir.1982), after the plaintiff has established a prima facie ease, “the defendant assumes the burden of producing (as distinct from proving)” a legitimate nondiscriminatory reason for its actions. Id. at 138 (emphasis in original). Throughout the case the plaintiff retains “her continuing burden of proof’ that the defendant discriminated against her. Id. (emphasis in original). With the Burdine standard firmly in mind, we must at this point divide our examination of the defendants’ rebuttal evidence. We consider first the defendants’ explanation of the Department’s promotional practices and Koren’s refusal to promote Ms. Brooks. Second, we consider the defendants’ justification for the wage disparity between the plaintiff and Ralph Butler. After Ms. Brooks established a prima fa-cie case, the defendants faced the burden of producing a reason for their actions, legitimate and nondiscriminatory on its face. The defendants introduced Director Koren and Department Supervisor Janet Tomko to testify to the Department’s legitimate reason for not promoting the plaintiff. Director Koren testified that he did not promote the plaintiff because of her poor attitude. He considered her abrasive and judgmental toward clients. Toward the clerical staff she donned a “superior attitude.” He" } ]

[ { "docid": "23066484", "title": "", "text": "be enhanced in value. In Cleveland, however, after the encumbered asset had been made a part of the estate, the referee merely permitted it to be sold by the trustee under the deed of trust, presumably with the understanding that any excess would be paid to the bankrupt estate. Never was there any indication that the referee intended to abandon the asset; in fact, it appears that the sale took place at his direction. Section 70(a) of the Bankruptcy Act vests title to all of the bankrupt’s property in the trustee as of the date of the filing of the petition. Thus, while valid liens existing at the time of the commencement of a bankruptcy proceeding are preserved, it is solely within the power of a court of bankruptcy to ascertain their validity and amount and to decree the method of their liquidation. Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 738, 51 S.Ct. 270, 272, 75 L.Ed. 645 (1931). However, the trustee in bankruptcy is not obliged to accept property so encumbered with liens as to be burdensome to the estate. Meyer v. Fleming, 327 U.S. 161, 166, 66 S.Ct. 382, 90 L.Ed. 595 (1946). As a rule, the trustee should abandon or disclaim all assets encumbered in excess of their value. Federal Land Bank of Berkeley v. Nalder, 116 F.2d 1004 (10th Cir. 1941), cert. denied, 313 U.S. 578, 61 S.Ct. 1095, 85 L.Ed. 1535 (1941). Abandonment by the trustee of an asset immediately revests title to that asset in the bankrupt. In re Thomas, 204 F.2d 788, 792 (7th Cir. 1953). Once he has elected to abandon an asset, the trustee is absolutely precluded from later reclaiming it, even if a subsequent increase in its value would make it of benefit to the estate. Beck v. Unruh, 37 Cal.2d 148, 231 P.2d 13 (1951). See generally: Collier on Bankruptcy 14th Ed., Vol. 4, ¶ 70.42, p. 1329, et seq. Since abandonment has no effect upon the validity of the liens encumbering the property (Collier ff 70.42 [4] n. 19a), the practical effect of the election" } ]

[ { "docid": "11313941", "title": "", "text": "the bankrupts and the Referee of his conclusion that the bankrupts had no equity in the property of any value to the estate and that he had to do something with it. It is my opinion that the conclusions of the Trustee so expressed to the Referee eonstituted an abandonment of the property. This, I feel, was confirmed by the Referee when after a statement by counsel for the bankrupts following the oral disclaimer of the Trustee, the Referee said to counsel for bankrupts, “If that were the factual situation why didn’t you take a rule upon the trustee to ask me for an order of turn over ?” The idea of the Trustee to reconvey to the bankrupts at private sale for a nominal sum and the acceptance by the Referee of a further nominal raise by the judgment creditors on the theory that he was bound to accept bids and approve a sale to the highest bidder was all predicated on the false assumption that the Trustee still had this real estate for disposal. Practically this identical situation was before the court in In re Yalden, D.C.Mass., 109 F.Supp. 603, 604. I quote with complete approval from the opinion of the court in that case as follows: “A trustee in bankruptcy has the right to abandon property of the bankrupt, title to which has been vested in him, when such property is of no value to the estate. Stanolind Oil & Gas Co. v. Logan, 5 Cir., 92 F.2d 28, 31. There is no procedure prescribed by the Bankruptcy Act, 11 U.S.C.A. § 1 et seq., to be followed by the trustee in abandoning property. Although it is better practice for the trustee to file a petition for allowance of the abandonment, and to have this passed upon by the referee, this is not necesary. It is enough if the trustee did in fact abandon the property. Mere inaction with respect to the property is not enough, but it is sufficient if the trustee clearly indicates his intention to abandon the property as valueless. In re Webb, 4" }, { "docid": "22855432", "title": "", "text": "also Sessions v. Romadka, 145 U.S. 29, 12 S.Ct. 799, 36 L.Ed. 609 (1892); Sparhawk v. Yerkes, 142 U.S. 1, 12 S.Ct. 104, 35 L.Ed. 915 (1891); In re Garfinkle, 577 F.2d 901 (5th Cir. 1978); In re Ira Haupt & Co., 398 F.2d 607 (2d Cir. 1968); Brookhaven Bank & Trust Co. v. Gwin, 253 F.2d 17 (5th Cir. 1958); Colson v. Monteil, 226 F.2d 614 (8th Cir. 1955); Rosenblum v. Dingfelder et al., 111 F.2d 406 (2d Cir. 1940); In re Moss et al., 21 F.Supp. 1019 (E.D.Ill.1938). This analysis appears to be equally appropriate to the present law. Section 554 deals with the abandonment of property. Both the House and Senate reports, in explanation of the effect of the section state: Abandonment may be to any party with a possessory interest in the property abandoned. In order to aid administration of the case, subsection (b) deems the court to have authorized abandonment of any property that is scheduled under Section 521(1) and that is not administered before the case is closed. That property is deemed abandoned to the debtor. H.R.Rep.No.95-595, supra at 377; S.Rep. No.95-989, supra at 92, U.S.Code Cong. & Admin.News 1978, pp. 5878, 6333. Subsection (b), enacted as Section 554(c), was changed in the final draft by deleting references originally made which stated that abandonment under this section would be made specifically to the debtor. Thus, it appears that abandonment under any subsection of 554 will be to a party with a “possessory interest.” Generally, a “posses-sory interest” is defined as a “right to exert control over” or a “right to possess” property “to the exclusion of others.” BLACK’S LAW DICTIONARY 1049 (5th ed. 1979). This legislative reference and attendant definition are in keeping with cases under former law which hold that title and right to the property reverts to its pre-bankrupt-cy status. Thus, whoever had the possesso-ry right to the property at the filing of bankruptcy again reacquires that right. Normally this party is the debtor, but it is conceivable that a creditor may be entitled to possession instead if, by the exercise of" }, { "docid": "6482496", "title": "", "text": "by relation as if the gift had not been made. (Citations omitted.) In Wallace v. Lawrence Warehouse Company, 338 F.2d 392, 394 n. 1 (9th Cir.1964), the Ninth Circuit emphasized the widespread acceptance of this general position: The ordinary rule is that, when a trustee abandons property of the bankrupt, title reverts to the bankrupt, nunc pro tunc, so that he is treated as having owned it continuously. (Citations omitted). See also Sessions v. Romadka, 145 U.S. 29, 112 S.Ct. 799, 36 L.Ed. 609 (1892); Sparhawk v. Yerkes, 142 U.S. 1, 12 S.Ct. 104, 35 L.Ed. 915 (1891); In re Garfinkle, 577 F.2d 901 (5th Cir.1978); In re Ira Haupt & Co., 398 F.2d 607 (2d Cir.1968); Brookhaven Bank & Trust Co. v. Gwin, 253 F.2d 17 (5th Cir.1958); Colson v. Monteil, 226 F.2d 614 (8th Cir.1955); Rosenblum v. Dingfelder et al., 111 F.2d 406 (2d Cir.1940); In re Moss et al., 21 F.Supp. 1019 (E.D.Ill.1938). This analysis appears to be equally appropriate to the present law. Section 554 deals with the abandonment of property. Both the House and Senate reports, in explanation of the effect of the section state: Abandonment may be to any party with a possessory interest in the property abandoned. In order to aid administration of the case, subsection (b) deems the court to have authorized abandonment of any property that is scheduled under Section 521(1) and that is not administered before the case is closed. That property is deemed abandoned to the debtor. H.R.Rep. No. 95-595, supra, at 377; S.Rep. No. 95-989, supra at 92, U.S. Code Cong. & Admin. News 1978, pp. 5878, 6333. Subsection (b), enacted as Section 554(c), was changed in the final draft by deleting references originally made which stated that abandonment under this section would be made specifically to the debtor. Thus, it appears that abandonment under any subsection of 554 will be to a party with a “possessory interest.” Generally, a “possessory interest” is defined as a “right to exert control over” or a “right to possess” property “to the exclusion of others.” BLACK’S LAW DICTIONARY 1049 (5th ed." }, { "docid": "23696012", "title": "", "text": "relative to the law of abandonment pronounced under a variety of circumstances. The principal cases relied upon by the bankrupt are Sparhawk v. Yerkes, 142 U.S. 1, 12 S.Ct. 104, 35 L.Ed. 915; Dushane v. Beall, 161 U.S. 513, 16 S.Ct. 637, 40 L.Ed. 791; Brown v. O’Keefe, 300 U.S. 598, 57 S.Ct. 543, 81 L.Ed. 827; In re Webb, 4 Cir., 54 F.2d 1065; In re Ferribee, 7 Cir., 93 F.2d 262, 263; and In re 'Malcom, D.C., 48 F.Supp. 675, There is at least one ground, however, which distinguishes all of these from the instant case, that is, the trustee or the court was dealing with a situation wherein the bankrupt had scheduled the asset which the trustee found worthless and abandoned. There is no case, so far as we are aware, which has sustained an abandonment by a bankruptcy trustee of non-scheduled property, the ownership of which was denied or concealed by the bankrupt. A pertinent observation is contained in First National Bank of Jacksboro v. Lasater, 196 U.S. 115, 118, 25 S.Ct. 206, 208, 49 L.Ed. 408, wherein the court stated: “We have held that trustees in bankruptcy are not bound to accept property of an onerous or unprofitable character, and that they have a reasonable time in which to elect whether they will accept or not. If they decline to take the property, the bankrupt can assert title thereto. [Citing cases.] But that doctrine can have no application when the trustee is ignorant of the existence of the property, and has had no opportunity to make an election. It cannot be that a bankrupt, by omitting to schedule and withholding from his trustee all knowledge of certain property, can, after his estate in bankruptcy has been finally closed up, immediately thereafter assert title to the property on the ground that the trustee had never taken any action in respect to it.” As already noted, it is hardly conceivable that a trustee could abandon property which he did not claim and which never came into his possession or, conversely, that a bankrupt could, by the process" }, { "docid": "8553279", "title": "", "text": "upon the creditors. A trustee in bankruptcy has the right to abandon property of the bankrupt, title to which has been vested in him, when such property is of no value to the estate. Stanolind Oil & Gas Co. v. Logan, 5 Cir., 92 F.2d 28, 31. There is no procedure prescribed by the Bankruptcy Act, 11 U.S.C.A. § 1 et seq., to be followed by the-trustee in abandoning property. Although it is better practice for the trustee to file a. petition for allowance of the abandonment,, \"and to have this passed upon by the referee, this is not necessary. It is enough if' the trustee did in fact abandon the property. Mere inaction with respect to the-property is not enough, but it is sufficient if the trustee clearly indicates his intention to abandon the property as valueless. In re Webb, 4 Cir., 54 F.2d 1065; In re Mai-com, D.C., 48 F.Supp. 675, and the numerous cases there cited. In this case, the trustee in 1939 considered the property worthless to the estate, and the referee has found' that in fact it was so. The trustee also-plainly stated his intention to disclaim all’ title to the property. Hence, it must be held that the trustee did in fact abandon the real estate in question in 1939. Where property is thus abandoned by the trustee, title thereto reverts to the bankrupt. Moreover, the abandonment is irrevocable. Even though the property later becomes more valuable, the trustee has no right to reclaim it. 4 Collier on Bankruptcy, p. 1223, and cases. Since 1939,. therefore, the property here in question has belonged to the bankrupt and not to the estate. The sale of the property by the trustee to the bankrupt was a mere formality which in no way affected the actual ownership of the property. Its only purpose and effect was to give the real owner a written confirmation of a transfer which had taken place in 1939, to remove any question arising from the fact that no written record evidenced the prior transfer. When the estate was reopened, there was-in fact" }, { "docid": "8384664", "title": "", "text": "Common Pleas for Chesterfield, South Carolina. Upon the issuance of a decree of foreclosure, a Notice of Intent to Appeal was served on the plaintiff in the foreclosure action, but the appeal was abandoned and the Supreme Court of South Carolina has denied the debtor’s Motion for Reinstatement of Appeal. Pursuant to notice of sale, the property was sold on August 1, 1983. The successful bidder at the sale has complied with the bid and the report on the sale was submitted to the trustee in bankruptcy pursuant to the order of this court on September 22, 1982. DISCUSSION AND CONCLUSION The record reveals that the trustee’s abandonment of the property was in accordance with section 554(a) of the Bankruptcy Code which provides: “(a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value to the estate.” The order for meeting of creditors contained a notice that the trustee may abandon burdensome or inconsequential property at the meeting of creditors. Once property has been abandoned by the trustee, the abandonment is irrevocable, regardless of any subsequent discovery that the property had greater value than previously believed. 4 Collier on Bankruptcy, Paragraph 554.02 (15th ed. 1979). This was the rule under the Bankruptcy Act of 1898. Fletcher v. Surprise, 180 F.2d 669 (7th Cir.1950); Webb v. Raleigh Hardware Co. (In re Webb), 54 F.2d 1065 (4th Cir.1932); Meyers v. Josephson, 124 F. 734 (5th Cir.1903). The rule, said to be “a principal of uniform application” was carried over from the Act into the Bankruptcy Code of 1978, Colleton County v. United States (In re Robert E. Lee Chevrolet-Oldsmobile, Inc.) Case No. 81-01552, Complaint No. 82-0585 (Bkrtcy.D.S.C., January 7, 1982); In re Enriquez, 9 B.C.D. 763, 22 B.R. 934 (Bkrtcy.D.Neb.1982); In re Bottles, 9 B.C.D. 501, 20 B.R. 947 (Bkrtcy.C.D.Ill.1982); In re Sutton, 8 B.C.D. 21, 10 B.R. 737 (Bkrtcy.E.D.Va.1981). There are two exceptions to the general rule that abandonment once accomplished is final. These exceptions, however, are limited to instances where property is concealed from" }, { "docid": "23696011", "title": "", "text": "records relied upon in this respect is that they create some confusion. It apparently is true that the trustee and his attorney, Stewart, had an inkling or suspicion that the bankrupt owned property other than that listed in his schedules, and that some investigation was made. Much reliance is placed upon a statement in the trustee’s final report, “that if no adequate bid or bids are received for same, your trustee be authorized to abandon same, that therefore said estate is now ready to be closed.” This report of the trustee was approved by the court and it is argued that this shows an abandonment of the very property now in controversy. We do not agree. It is quite plain, so we think, that the trustee was seeking to abandon scheduled, not unscheduled, property. In fact, it is not discernible how the trustee could abandon property which he failed to find was that of the bankrupt and ownership of which the bankrupt stoutly denied. We need not attempt a detailed analysis of the many cases relative to the law of abandonment pronounced under a variety of circumstances. The principal cases relied upon by the bankrupt are Sparhawk v. Yerkes, 142 U.S. 1, 12 S.Ct. 104, 35 L.Ed. 915; Dushane v. Beall, 161 U.S. 513, 16 S.Ct. 637, 40 L.Ed. 791; Brown v. O’Keefe, 300 U.S. 598, 57 S.Ct. 543, 81 L.Ed. 827; In re Webb, 4 Cir., 54 F.2d 1065; In re Ferribee, 7 Cir., 93 F.2d 262, 263; and In re 'Malcom, D.C., 48 F.Supp. 675, There is at least one ground, however, which distinguishes all of these from the instant case, that is, the trustee or the court was dealing with a situation wherein the bankrupt had scheduled the asset which the trustee found worthless and abandoned. There is no case, so far as we are aware, which has sustained an abandonment by a bankruptcy trustee of non-scheduled property, the ownership of which was denied or concealed by the bankrupt. A pertinent observation is contained in First National Bank of Jacksboro v. Lasater, 196 U.S. 115, 118, 25" }, { "docid": "16725592", "title": "", "text": "to assign, having already abandoned. It is true that Lang, as trustee, had control of the equity of the bankrupt, if any, in the gypsum. But that equity was determined by Lang to be worthless. The judgment did not deprive Lang as trustee, or Wallace as his successor by abandonment, of that equity. Wallace, when he appealed, still had the rights of a trustee, and purported to be acting for his creditors. He lost that standing when he was adjudicated a bankrupt. At that point, only Lang had standing to prosecute the appeal. Cf. Castaner v. Mora, 1 Cir., 1954, 216 F.2d 189. The abandonment of the appeal, therefore, did not transfer to Wallace the right of appeal; it left the judgment in effect. The abandoned equity must be held to be subject to the judgment, and thus to the rights of Lawrence Warehouse Company and through it, of the two secured creditors, as established by the judgment. Wallace has no standing. We conclude that the appeal is moot and should be dismissed, and it is so ordered. . The ordinary rule is that, when a trustee abandons property of the bankrupt, title reverts to the bankrupt, nunc pro tunc, so that he is treated as having owned it continuously. See Sparhawk v. Yerkes, 1891, 142 U.S. 1, 12 S.Ct. 104, 35 L.Ed. 915; Sessions v. Romadka, 1892, 145 U.S. 29, 12 S.Ct. 799, 36 L.Ed. 609; Brown v. O’Keefe, 1937, 300 U.S. 598, 57 S.Ct. 543, 81 L.Ed. 827. This is a fiction, and a fiction, is but a convenient device, invented by courts to aid them in achieving a just result. It is not a categorical imperative, to be blindly followed to a result that is unjust. The Supreme Court itself had not so followed it. Dushane v. Beall, 1896, 161 U.S. 513, 16 S.Ct. 637, 40 L.Ed. 791; First National Bank of Jacksboro v. Lasater, 1905, 196 U.S. 115, 25 S.Ct. 206, 49 L.Ed. 408. See also In re J. C. Winship Co., 7 Cir., 1903, 120 F. 93, 96." }, { "docid": "9580771", "title": "", "text": "estate because there did not appear to be any equity available for the benefit of unsecured creditors. In February, 1985, the property was sold for $99,500.00, and net equity of $4,579.64 was paid to the trustee. The trustee notified the plaintiffs of his intention to revoke his prior abandonment of the property and preserve the equity for the estate. It is the efficacy of that revocation which is at issue here. The general rule is that once property has been abandoned by a trustee, the abandonment is irrevocable, regardless of any subsequent discovery that the property had greater value than previously believed. 2 Collier Bankruptcy Manual, Paragraph 554.06 (3rd ed. 1986); see In Re Burch Co., 37 B.R. 273, 274 (Bankr.D.S.C.1983). The trustee argues, however, and the bankruptcy court agreed, that the trustee should be able to revoke the abandonment in this case based on the analysis in In the Matter of Lintz West Side Lumber, Inc., 655 F.2d 786 (7th Cir.1981) and In the Matter of Alt, 39 B.R. 902 (Bankr.W.D.Wis.1984). We believe that the bankruptcy court’s reliance on those cases is misplaced. In Lintz, the trustee abandoned certain accounts receivable because he believed a creditor had a perfected security interest in the accounts. The trustee later learned that the creditor’s financing statement contained an error and was unperfected. The trustee then sought to revoke his abandonment of the accounts. The court of appeals held that where there was a mistake in the original abandonment and where the purported secured creditor had not been prejudiced, the trustee could revoke his prior abandonment of the accounts. Lintz, 655 F.2d at 791. In Alt, the trustee overlooked a possible preference action and was allowed to revoke his prior abandonment and recover the preference. As the court noted in Alt, the trustees in both Alt and Lintz overlooked available information before the abandonment and then sought to correct the mistake. In this matter, on the other hand, the facts do not show such a mistake on the part of the trustee. The trustee here abandoned the property based on his conclusion that" }, { "docid": "6482495", "title": "", "text": "estate, such as by sale, abandonment, or exemption.”); In re Cruseturner, 8 B.R. 581 (Bkrtcy.D.Utah 1981). In the Crusetumer case this Court also examined the rights of the parties vis-a-vis the property following an abandonment: The state of the law under the former Act appears to be that title to all property abandoned by the trustee stood as if no bankruptcy had been filed, which in most cases meant it revested in the debt- or. Justice Cardozo aptly expressed this rule in Brown v. O’Keefe, 300 U.S. 598, 602, 57 S.Ct. 543, 546, 81 L.Ed. 827 (1937): Whatever title or inchoate interest may have passed to the trustee was extinguished by relation as of the filing of the petition when the trustee informed the court that the shares were burdensome assets, and was directed by the court to abandon and disclaim them. In such case “the title stands as if no assignment had been made.” A precise analogy is found in the law of gifts and legacies. Acceptance is presumed, but rejection leaves the title by relation as if the gift had not been made. (Citations omitted.) In Wallace v. Lawrence Warehouse Company, 338 F.2d 392, 394 n. 1 (9th Cir.1964), the Ninth Circuit emphasized the widespread acceptance of this general position: The ordinary rule is that, when a trustee abandons property of the bankrupt, title reverts to the bankrupt, nunc pro tunc, so that he is treated as having owned it continuously. (Citations omitted). See also Sessions v. Romadka, 145 U.S. 29, 112 S.Ct. 799, 36 L.Ed. 609 (1892); Sparhawk v. Yerkes, 142 U.S. 1, 12 S.Ct. 104, 35 L.Ed. 915 (1891); In re Garfinkle, 577 F.2d 901 (5th Cir.1978); In re Ira Haupt & Co., 398 F.2d 607 (2d Cir.1968); Brookhaven Bank & Trust Co. v. Gwin, 253 F.2d 17 (5th Cir.1958); Colson v. Monteil, 226 F.2d 614 (8th Cir.1955); Rosenblum v. Dingfelder et al., 111 F.2d 406 (2d Cir.1940); In re Moss et al., 21 F.Supp. 1019 (E.D.Ill.1938). This analysis appears to be equally appropriate to the present law. Section 554 deals with the abandonment of property." }, { "docid": "22855431", "title": "", "text": "in the debtor. Justice Cardozo aptly expressed this rule in Brown v. O’Keefe, 300 U.S. 598, 602, 57 S.Ct. 543, 546, 81 L.Ed. 827 (1937): Whatever title or inchoate interest may have passed to the trustee was extinguished by relation as of the filing of the petition when the trustee informed the court that the shares were burdensome assets, and was directed by the court to abandon and disclaim them. In such case “the title stands as if no assignment had been made.” A precise analogy is found in the law of gifts and legacies. Acceptance is presumed, but rejection leaves the title by relation as if the gift had not been made. (Citations omitted.) In Wallace v. Lawrence Warehouse Company, 338 F.2d 392, 394 n. 1 (9th Cir. 1964), the Ninth Circuit emphasized the widespread acceptance of this general position: The ordinary rule is that, when a trustee abandons property of the bankrupt, title reverts to the bankrupt, nunc pro tunc, so that he is treated as having owned it continuously. (Citations omitted.) See also Sessions v. Romadka, 145 U.S. 29, 12 S.Ct. 799, 36 L.Ed. 609 (1892); Sparhawk v. Yerkes, 142 U.S. 1, 12 S.Ct. 104, 35 L.Ed. 915 (1891); In re Garfinkle, 577 F.2d 901 (5th Cir. 1978); In re Ira Haupt & Co., 398 F.2d 607 (2d Cir. 1968); Brookhaven Bank & Trust Co. v. Gwin, 253 F.2d 17 (5th Cir. 1958); Colson v. Monteil, 226 F.2d 614 (8th Cir. 1955); Rosenblum v. Dingfelder et al., 111 F.2d 406 (2d Cir. 1940); In re Moss et al., 21 F.Supp. 1019 (E.D.Ill.1938). This analysis appears to be equally appropriate to the present law. Section 554 deals with the abandonment of property. Both the House and Senate reports, in explanation of the effect of the section state: Abandonment may be to any party with a possessory interest in the property abandoned. In order to aid administration of the case, subsection (b) deems the court to have authorized abandonment of any property that is scheduled under Section 521(1) and that is not administered before the case is closed. That" }, { "docid": "10182859", "title": "", "text": "(W.D.Va.1967). An exception to this general rule arises when a trustee is given scant information or misinformation which leads the trustee to rely on the debtor’s statements as true, thereby foregoing an in depth investigation. In this particular case, the debtor, Mack L. Killebrew, informed the trustee that his interest in the trust was contingent only and that if it ever vested there would be no equity for the estate. As stated in the trustee’s memorandum, this is not a situation where the property experienced an unforeseen increase in value. The value had actually decreased from the time of the will to the time of the sale. The abandonment by the trustee was a mistake, primarily resulting from the representations by the debtor, Mack L. Kille-brew, that his interest was a contingent interest and that upon the sale there would be no equity for the estate. As set forth in Matter of Lintz West Side Lumber, Inc., 655 F.2d 786 (7th Cir.1981), property was abandoned to a creditor that the trustee believed to have a perfected security interest. When the trustee later learned that the security interest was not perfected, he sought to have the abandonment revoked. In upholding the revocation of abandonment, the court stated: “The trustee is merely attempting to correct the erroneous distribution of property by abandonment to a creditor with a security interest which has subsequently been shown to be unperfected throughout. Under these circumstances, where there has been a mistake in the original abandonment and where the purported secured creditor has not been unfairly prejudiced, we do not believe that the bankruptcy judge is precluded from reconsidering the entry of such an order setting aside a prior abandonment.... If a mistake has been made, it should be corrected, if the correction is not unfairly prejudicial to innocent parties.” Matter of Lintz West Side Lumber, Inc., 655 F.2d at 791 (7th Cir.1981). The creditors in this bankruptcy proceeding would be unduly prejudiced if this Court were to allow the debtors to keep the $83,932.85. To order a revocation of the abandonment would not prejudice any creditors." }, { "docid": "5134430", "title": "", "text": "the original obligation, is unsecured. Id.; see also H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 5, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6312. In interpreting these provisions, we begin by recognizing, as the bankruptcy court did, that the trustee abandoned this property pursuant to section 554 of the Code. That section allows abandonment of property that “is burdensome to the estate or that is of inconsequential value and benefit to the estate.” 11 U.S.C. § 554(a). Property abandoned under this section ceases to be part of the estate. See H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 5, reprinted in 1978 U.S.Code Cong. & Admin.News at 6299. (“Property ceases to be property of the estate, such as by sale, abandonment, or exemption.”). It reverts to the debtor and stands as if no bankruptcy petition was filed. See Brown v. O'Keefe, 300 U.S. 598, 602, 57 S.Ct. 543, 546, 81 L.Ed. 827 (1937); Wallace v. Lawrence Warehouse Co., 338 F.2d 392, 394 n. 1 (9th Cir.1964); Dewsnup, 87 B.R. at 681. Following abandonment, “whoever had the possessory right to the property at the filing of bankruptcy again reacquires that right.” Dewsnup, 87 B.R. at 681. Abandoned property is not property administered by the estate. Recognition of this principle is essential in considering whether debtors may void these liens. Pursuant to the plain language of section 506(a), an allowed claim of a creditor is one in which the estate has an interest. It is “a secured claim to the extent of the value of such’ creditor’s interest in the estate’s interest in such property....” Here, debtors argue that because an allowed secured claim is limited to the value of the collateral under 506(a), they may completely redeem the property and retain possession by paying creditors the property’s fair market value. This analysis overlooks the fundamental premise of the language contained in this section. In order to apply section 506(a), the estate must have an interest in the property. The estate has no interest in, and does not administer, abandoned property. In In re Maitland, the court stated: The difficulty" }, { "docid": "13675843", "title": "", "text": "the bar of the statute of limitations, Flores v. Cameron County, supra, 92 F.3d at 272-73, and that is not an issue here. Clearly, then, if the assignable part of Morlan’s ERISA claim, having been transferred to the estate in bankruptcy by operation of law when Morían filed for bankruptcy, was abandoned before the amended complaint was filed, he could sue to enforce it, because the effect of a trustee’s abandoning a claim is to revest the ownership of it in the debtor. E.g., Koch Refining v. Farmers Union Central Exchange, Inc., 831 F.2d 1339, 1346 n. 9 (7th Cir.1987); Catalano v. Commissioner, 279 F.3d 682, 685 (9th Cir.2002); In re Interpictures Inc., 217 F.3d 74, 76 (2d Cir.2000) (per curiam). And actually, despite the attention we’ve been paying to getting the sequence right, the sequence doesn’t matter; for when property of the bankrupt is abandoned, the title “reverts to the bankrupt, nunc pro tunc, so that he is treated as having owned it continuously.” Wallace v. Lawrence Warehouse Co., 338 F.2d 392, 394 n. 1 (9th Cir.1964); see also Sessions v. Romadka, 145 U.S. 29, 51-52, 12 S.Ct. 799, 36 L.Ed. 609 (1892); Catalano v. Commissioner, supra, 279 F.3d at 685; In re Dewsnup, 908 F.2d 588, 590 (10th Cir.1990) (per curiam). The purposes of retroactive vesting include to protect against the running of the statute of limitations, Sessions v. Romadka, supra, 145 U.S. at 52, 12 S.Ct. 799, and to compensate the trustee for any cost he may have incurred in maintaining the property during his custody of it. Brown v. O’Keefe, 300 U.S. 598, 602-03, 57 S.Ct. 543, 81 L.Ed. 827 (1937) (Cardozo, J.). In arguing that the trustee abandoned Morlan’s claim, Morían points to four things: the tape recording of a creditors’ meeting at which he stated under oath in response to a question from the trustee about his assets: “I think I might be involved in a class action lawsuit involving an insurance company I used to work for”; a letter from the trustee to Morlan’s lawyer stating that the trustee had decided to “abandon" }, { "docid": "10182860", "title": "", "text": "perfected security interest. When the trustee later learned that the security interest was not perfected, he sought to have the abandonment revoked. In upholding the revocation of abandonment, the court stated: “The trustee is merely attempting to correct the erroneous distribution of property by abandonment to a creditor with a security interest which has subsequently been shown to be unperfected throughout. Under these circumstances, where there has been a mistake in the original abandonment and where the purported secured creditor has not been unfairly prejudiced, we do not believe that the bankruptcy judge is precluded from reconsidering the entry of such an order setting aside a prior abandonment.... If a mistake has been made, it should be corrected, if the correction is not unfairly prejudicial to innocent parties.” Matter of Lintz West Side Lumber, Inc., 655 F.2d at 791 (7th Cir.1981). The creditors in this bankruptcy proceeding would be unduly prejudiced if this Court were to allow the debtors to keep the $83,932.85. To order a revocation of the abandonment would not prejudice any creditors. This Court agrees with the trustee that it is the responsibility of the debtors to provide an accurate and complete disclosure of all property in the bankruptcy proceedings. When debtors fail to do so they should not be allowed to profit at the expense of innocent creditors. For these reasons, the Court is of the opinion that the relief sought in the amended complaint to turn over assets to debtors should be denied and that the trustee should distribute the aforesaid $83,932.85 as provided by law. SO ORDERED." }, { "docid": "13675844", "title": "", "text": "1 (9th Cir.1964); see also Sessions v. Romadka, 145 U.S. 29, 51-52, 12 S.Ct. 799, 36 L.Ed. 609 (1892); Catalano v. Commissioner, supra, 279 F.3d at 685; In re Dewsnup, 908 F.2d 588, 590 (10th Cir.1990) (per curiam). The purposes of retroactive vesting include to protect against the running of the statute of limitations, Sessions v. Romadka, supra, 145 U.S. at 52, 12 S.Ct. 799, and to compensate the trustee for any cost he may have incurred in maintaining the property during his custody of it. Brown v. O’Keefe, 300 U.S. 598, 602-03, 57 S.Ct. 543, 81 L.Ed. 827 (1937) (Cardozo, J.). In arguing that the trustee abandoned Morlan’s claim, Morían points to four things: the tape recording of a creditors’ meeting at which he stated under oath in response to a question from the trustee about his assets: “I think I might be involved in a class action lawsuit involving an insurance company I used to work for”; a letter from the trustee to Morlan’s lawyer stating that the trustee had decided to “abandon any claim the bankruptcy estate might have to any future proceeds arising from that lawsuit”; the “trustee’s report of no distribution and statement of abandonment of property,” submitted to the bankruptcy court; and the bankruptcy judge’s order approving “the Trustee’s statement of abandonment and report of no distribution,” discharging the trustee, and dosing the “no asset” case. No doubt the trustee wanted and intended to abandon Morlan’s claim. But the defendants argue, and the district court agreed, that the trustee’s attempt to abandon failed because the trustee failed to comply with the statutory requirements for abandoning an asset that is part of the debtor’s estate. The requirements are exacting, in recognition of the potential harm to creditors from the trustee’s abandoning property to which they would otherwise be entitled because it is property of the estate in bankruptcy, and of the fact that “abandonment is revocable only in very limited circumstances, such as ‘where the trustee is given incomplete or false information of the asset by the debtor, thereby foregoing a proper investigation of the" }, { "docid": "11313942", "title": "", "text": "disposal. Practically this identical situation was before the court in In re Yalden, D.C.Mass., 109 F.Supp. 603, 604. I quote with complete approval from the opinion of the court in that case as follows: “A trustee in bankruptcy has the right to abandon property of the bankrupt, title to which has been vested in him, when such property is of no value to the estate. Stanolind Oil & Gas Co. v. Logan, 5 Cir., 92 F.2d 28, 31. There is no procedure prescribed by the Bankruptcy Act, 11 U.S.C.A. § 1 et seq., to be followed by the trustee in abandoning property. Although it is better practice for the trustee to file a petition for allowance of the abandonment, and to have this passed upon by the referee, this is not necesary. It is enough if the trustee did in fact abandon the property. Mere inaction with respect to the property is not enough, but it is sufficient if the trustee clearly indicates his intention to abandon the property as valueless. In re Webb, 4 Cir., 54 F.2d 1065; In re Malcom, D.C., 48 F.Supp. 675, and the numerous cases there cited. * * * ” Here the Trustee clearly indicated that he considered the property worthless to the estate, and his intention to disclaim all title to the property. The method he chose, which had the approval of the Referee, was not only gratuitous but without the sanction of law or reason. He obviously had nothing to sell for the very simple reason that he did in fact abandon the real estate in question at the special meeting of creditors on October 21, 1953. On the abandonment, title irrevocably reverted to the bankrupts. Consequently since 1953 the property in question has belonged to the bankrupts and not to the estate. The order and decree of the Referee under date of December 2, 1953, authorizing and empowering the Trustee to make, execute and deliver a Trustee’s Deed for his right, title and interest in and to premises known as 4150 Maywood Street, Philadelphia, Pennsylvania, to Gilbert R. Goldberg for the" }, { "docid": "22250224", "title": "", "text": "of the original obligation, is unsecured. Id.; see also H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 5, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6312. In interpreting these provisions, we begin by recognizing, as the bankruptcy court did, that the trustee abandoned this property pursuant to section 554 of the Code. That section allows abandonment of property that “is burdensome to the estate or that is of inconsequential value and benefit to the estate.” 11 U.S.C. § 554(a). Property abandoned under this section ceases to be part of the estate. See H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 5, reprinted in 1978 U.S.Code Cong. & Admin.News at 6299. (“Property ceases to be property of the estate, such as by sale, abandonment, or exemption.”). It reverts to the debtor and stands as if no bankruptcy petition was filed. See Brown v. O’Keefe, 300 U.S. 598, 602, 57 S.Ct. 543, 546, 81 L.Ed. 827 (1937); Wallace v. Lawrence Warehouse Co., 338 F.2d 392, 394 n. 1 (9th Cir.1964); Dewsnup, 87 B.R. at 681. Following abandonment, “whoever had the possessory right to the property at the filing of bankruptcy again reacquires that right.” Dewsnup, 87 B.R. at 681. Abandoned property is not property administered by the estate. Recognition of this principle is essential in considering whether debtors may void these liens. Pursuant to the plain language of section 506(a), an allowed claim of a creditor is one in which the estate has an interest. It is “a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property_” Here, debtors argue that because an allowed secured claim is limited to the value of the collateral under 506(a), they may completely redeem the property and retain possession by paying creditors the property’s fair market value. This analysis overlooks the fundamental premise of the language contained in this section. In order to apply section 506(a), the estate must have an interest in the property. The estate has no interest in, and does not administer, abandoned property. In In re Maitland, the court stated: The" }, { "docid": "8384665", "title": "", "text": "creditors. Once property has been abandoned by the trustee, the abandonment is irrevocable, regardless of any subsequent discovery that the property had greater value than previously believed. 4 Collier on Bankruptcy, Paragraph 554.02 (15th ed. 1979). This was the rule under the Bankruptcy Act of 1898. Fletcher v. Surprise, 180 F.2d 669 (7th Cir.1950); Webb v. Raleigh Hardware Co. (In re Webb), 54 F.2d 1065 (4th Cir.1932); Meyers v. Josephson, 124 F. 734 (5th Cir.1903). The rule, said to be “a principal of uniform application” was carried over from the Act into the Bankruptcy Code of 1978, Colleton County v. United States (In re Robert E. Lee Chevrolet-Oldsmobile, Inc.) Case No. 81-01552, Complaint No. 82-0585 (Bkrtcy.D.S.C., January 7, 1982); In re Enriquez, 9 B.C.D. 763, 22 B.R. 934 (Bkrtcy.D.Neb.1982); In re Bottles, 9 B.C.D. 501, 20 B.R. 947 (Bkrtcy.C.D.Ill.1982); In re Sutton, 8 B.C.D. 21, 10 B.R. 737 (Bkrtcy.E.D.Va.1981). There are two exceptions to the general rule that abandonment once accomplished is final. These exceptions, however, are limited to instances where property is concealed from the trustee or is unscheduled. In this case the property was shown on the debtor’s schedules and its ownership by the debtor was known to the trustee. The mortgage creditors, subsequent to the order modifying the § 362 stay proceeded with foreclosure in reliance upon the order of this court and the failure of the debtor to proceed with an appeal or any of the other rules and provisions of this court or the Federal Rules of Civil Procedure. The creditors proceeded with foreclosure and sale of the property, all of which has been completed in the Circuit Courts of the State of South Carolina. Because the property was abandoned by the trustee, it appears that the principal relief sought by the movants, that of bringing the property involved back into the estate, may not be granted. ORDER IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the mov-ant’s Motion for Review and Motion for Imposition of Restraining Orders is denied and the Motion of Murray Mitchell Building Supply Company, Inc., now known as C E" }, { "docid": "10182858", "title": "", "text": "the trust property pursuant to representations by the debtors that the interest in the trust was purely contingent, and that if the funds ever were received from the trust, there would be no equity for the estate. The listing of the property in the petition and schedules and the representations made to the trustee at the first meeting of creditors, caused the trustee not to look any further with reference to the assets and to believe and rely on the representations of the debtors. While the exact market value of the property might have been difficult to establish prior to a sale, the debtors knew or reasonably should have known that there would be equity in the trust for distribution to the beneficiaries. When the sale proceeds were finally distributed, there remained $83,932.85 for the debtor, Mack L. Killebrew. The general rule is that abandonment of property divests the trustee of title, and that an abandonment is irrevocable regardless of subsequent unforeseen enhancement in the value of the property. In re Polumbo, 271 F.Supp. 640 (W.D.Va.1967). An exception to this general rule arises when a trustee is given scant information or misinformation which leads the trustee to rely on the debtor’s statements as true, thereby foregoing an in depth investigation. In this particular case, the debtor, Mack L. Killebrew, informed the trustee that his interest in the trust was contingent only and that if it ever vested there would be no equity for the estate. As stated in the trustee’s memorandum, this is not a situation where the property experienced an unforeseen increase in value. The value had actually decreased from the time of the will to the time of the sale. The abandonment by the trustee was a mistake, primarily resulting from the representations by the debtor, Mack L. Kille-brew, that his interest was a contingent interest and that upon the sale there would be no equity for the estate. As set forth in Matter of Lintz West Side Lumber, Inc., 655 F.2d 786 (7th Cir.1981), property was abandoned to a creditor that the trustee believed to have a" } ]

[ { "docid": "8295303", "title": "", "text": "court will therefore dismiss the IEU plaintiffs’ claim for restraint of trade under the common law of New York. Plaintiffs may pursue this claim in a second amended complaint upon a clear showing that it is cognizable under New York law. ii. Interstate Conduct as a Basis for Claims under State Law Defendants seek dismissal of the IEU and IPR plaintiffs’ claims under the antitrust statutes of Nevada, South Dakota, Tennessee, West Virginia, and Wisconsin on the ground that these statutes apply only to intrastate commerce. I. Nevada The Nevada Unfair Trade Practices Act (“NUTPA”) proscribes anticom-petitive conduct including price fixing and renders it “unlawful to conduct any part of any such activity” within the state. Nev. Rev.Stat. § 598A.060(1) (emphasis added). Hence, the statute creates a remedy against an interstate conspiracy that produces harm in Nevada. See In re Intel Corp. Microprocessor Antitrust Litig., 496 F.Supp.2d 404, 413-14 (D.Del.2007); In re New Motor Vehicles Canadian Export Antitrust Litig. (NMV), 350 F.Supp.2d 160, 171-172 (D.Me.2004). In the instant matter, the IEU and IPR plaintiffs allege that the defendants engaged in a national price-fixing conspiracy that resulted in price increases in Nevada and elsewhere. The complaints therefore state a claim under the NUTPA. II. South Dakota The South Dakota antitrust statute states that “[a] contract, combination, or conspiracy between two or more persons in restraint of trade or commerce any part of which is within this state is unlawful.” S.D. Codified Laws § 37-1-3.1. “The statutory language is ambiguous as to whether it is a part of the conspiracy or a part of the trade or commerce that must be within the state.” NMV, 350 F.Supp.2d at 172; see also Intel Corp., 496 F.Supp.2d at 414. Courts have resolved this ambiguity by adopting the latter statutory interpretation. Intel Corp., 496 F.Supp.2d at 414; NMV, 350 F.Supp.2d at 172. Therefore, a plaintiff must allege only that defendant’s conduct produced anticompeti-tive effects within South Dakota. NMV, 350 F.Supp.2d at 172. Here, plaintiffs state a claim under South Dakota law by alleging a national conspiracy that produced increased prices in South Dakota. III. Tennessee" } ]

[ { "docid": "20125622", "title": "", "text": "Conduct Defendants argue that the TCAC insufficiently alleges state claims under the antitrust laws of the District of Columbia, Michigan, South Dakota, Tennessee, West Virginia, and Wisconsin, as well as the consumer protection laws of North Carolina. Defendants focus on a single common denominator: they say that because each of those states’ statutes require an allegation of conduct or substantial effects within the state, the absence of such an allegation is fatal. In large part, Plaintiffs accept the proposition that these states require allegations of intrastate conduct or substantial effects within the states, but they say that the TCAC sufficiently pleads intrastate activity. Drawing all inferences in favor of Plaintiffs, as the Court must, the TCAC’s allegations are sufficient to satisfy state statutes requiring either allegations of intrastate conduct or substantial effects within the state. The TCAC alleges that Defendants “produced, licensed, distributed and/or sold” Internet Music in all of the listed states. (TCAC ¶¶ 39, 44, 57-59, 127, 136.) The TCAC alleges that Defendants’ conduct was “in a continuous and uninterrupted flow of intrastate and inter state commerce throughout the United States.” (TCAC ¶89.) Pleadings involving similar allegations of intrastate conduct along with conduct throughout the United States in nationwide class actions have survived motions to dismiss in the face of this very argument. E.g., In re Chocolate Confectionary Antitrust Litig., 602 F.Supp.2d 538, 581 (M.D.Pa.2009) (similar pleading sufficient to allege intrastate conduct in Wisconsin); In re Intel Corp. Microprocessor Antitrust Litig., 496 F.Supp.2d 404, 411-14 (D.Del.2007) (District of Columbia); In re NMV, 350 F.Supp.2d at 171-75 (South Dakota, Tennessee & West Virginia). The Court cautions that “[t]he allegations of the [TCAC] certainly could have been more fulsome on this subject.” In re NMV, 350 F.Supp.2d at 171. Nevertheless, the Court must construe the pleadings in a light favorable to Plaintiffs and thus considers allegations of nationwide sales and distribution on essentially the same terms in both intrastate and interstate commerce to be sufficient. See id. Defendants cite California v. Infineon Technologies AG, which they argue holds that similar language is insufficient to plead interstate activity. 531 F.Supp.2d 1124," }, { "docid": "20125662", "title": "", "text": "by its terms only applies to members of the Ottinger class, which includes claims arising from CD purchases from June 1, 1991 to September 23, 2003. (Almeida Decl. Ex. E, §§ 1.5, 1.16, 1.19.) . Other futures-market cases Plaintiffs rely upon are similarly distinguishable; in all of those cases, allegations of contractual or highly correlated price movements were at issue. E.g., Sanner v. Bd. of Trade of Chi., 62 F.3d 918, 929 (7th Cir.1995); Ice Cream Liquidation, Inc. v. Land O'Lakes, Inc., 253 F.Supp.2d 262, 274 (D.Conn.2003) (\"Defendants concede that plaintiff has alleged a causal link between the CME butter price and the wholesale price of milk, cream, and butter.”). . It is illustrative that the Court of Appeals hardly mentioned CDs in its opinion vacating this Court’s earlier judgment dismissing the case. Its explanation for why the complaint survives focused instead on the Internet Music-related allegations. Only once did the Court of Appeals mention CDs in that discussion, and that mention referenced the lack of any reduction in the price for Internet Music \"as compared to CDs.” Starr, 592 F.3d at 323. . The TCAC amends its allegations to include violations of Illinois state law. (TCAC ¶¶ 146-149.) Illinois is a state from which no named plaintiff hails, making the total fourteen states, a one-state increase from the thirteen states identified in the parties’ papers. (Pl. 2007 Opp. at 25 n. 23.) . In supplemental briefing, Defendants state that the state statutes \"apply exclusively to intrastate — not interstate — conduct.” (Def. Response to PL Supp. Auth. Dated June 10, 2010, at 5.) If this argument is that relief under these statutes is exclusive of any applicable federal relief for interstate activity, the Court rejects it. \"[T]he Court does not interpret the statutes to be inapplicable where the anticompetitive conduct may have both interstate effects and, as concerns the particular state in question, intrastate impact.” Sheet Metal Workers, 2008 WL 3833577, at *12 (collecting cases). . Plaintiffs dispute that Michigan, West Virginia, and South Dakota require intrastate allegations. The Michigan statute explicitly requires the unlawful restraint of trade to" }, { "docid": "20125621", "title": "", "text": "[larger] class action.” Id.; accord Blessing, 756 F.Supp.2d at 452; Sheet Metal Workers Nat’l Health Fund v. Amgen Inc., No. 07 Civ. 5295, 2008 WL 3833577, at *9 (D.N.J. Aug. 13, 2008). Therefore, class certification issues are the source of any standing problems iden tified by Defendants at this stage of the litigation. Here, moreover, statutory standing is generally at issue with respect to the state claims. Salsitz, 210 F.R.D. at 97. Class certification is logically antecedent to standing in this case, and the Court will consider standing after class certification has been resolved. See Blessing, 756 F.Supp.2d at 452; In re Buspirone, 185 F.Supp.2d at 377. 2. State-Law Statutory Claims Defendants make two basic arguments as to the pleading of state-law claims. First, they claim that the TCAC contains insufficient allegations of intrastate conduct in states requiring such allegations and that in states without such a requirement, a lack of an intrastate connection fails under the dormant Commerce Clause. Second, they say that Plaintiffs do not properly allege state-law consumer protection claims. a. Intrastate Conduct Defendants argue that the TCAC insufficiently alleges state claims under the antitrust laws of the District of Columbia, Michigan, South Dakota, Tennessee, West Virginia, and Wisconsin, as well as the consumer protection laws of North Carolina. Defendants focus on a single common denominator: they say that because each of those states’ statutes require an allegation of conduct or substantial effects within the state, the absence of such an allegation is fatal. In large part, Plaintiffs accept the proposition that these states require allegations of intrastate conduct or substantial effects within the states, but they say that the TCAC sufficiently pleads intrastate activity. Drawing all inferences in favor of Plaintiffs, as the Court must, the TCAC’s allegations are sufficient to satisfy state statutes requiring either allegations of intrastate conduct or substantial effects within the state. The TCAC alleges that Defendants “produced, licensed, distributed and/or sold” Internet Music in all of the listed states. (TCAC ¶¶ 39, 44, 57-59, 127, 136.) The TCAC alleges that Defendants’ conduct was “in a continuous and uninterrupted flow of intrastate" }, { "docid": "20125664", "title": "", "text": "be in \"a relevant market,” Mich. Comp. Laws Ann. § 445.771, which it defines as an area of competition, \"all or any part of which is within the state,” Id. § 445.772. Thus, the Court assumes that an allegation of intrastate conduct is required in Michigan. West Virginia and South Dakota have statutes that courts have held to be ambiguous as to whether the conspiracy or the conduct must be alleged to have been within the state. S.D. Codified Laws § 37-1-3.1 (\"[A] conspiracy ... in restraint of trade or commerce any part of which is within this state is unlawful.”); W. Va.Code § 47-18-3 (similar); see, e.g., In re NMV, 350 F.Supp.2d at 172, 175 (holding statutes ambiguous). In light of this potential ambiguity, courts have held that the states intended to cover as broad a range of activities as possible and that the statutes require allegations of some conduct within the state. In re Intel Corp. Microprocessor Antitrust Litig., 496 F.Supp.2d 404, 414 (D.Del.2007); In re NMV, 350 F.Supp.2d at 172, 175. Accordingly, Plaintiffs' objections to having to allege intrastate conduct or effects as to South Dakota and West Virginia are meritless, and the Court assumes that those states require an allegation of intrastate conduct. . “It would have been helpful if the plaintiffs had added allegations of state-directed activity.” In re NMV, 350 F.Supp.2d at 169 n. 2. For example, simply adding an allegation of conduct throughout the United States \"and in each listed state” would be superior pleading. . Defendants offer no developed argument or legal authority for their claim that the TCAC is insufficient under the District of Columbia, Florida, Maine, Massachusetts, or Nebraska consumer protection laws. Absent Defendants’ invocation of some legal basis to dismiss these claims, the Court will not do so. The claims under these states’ laws may proceed. . The Court rejects Defendants’ first argument: that unjust enrichment is disallowed where an adequate remedy at law exists. This argument is premature because Plaintiffs may plead in the alternative. In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 544 (D.N.J.2004). Likewise, Defendants' argument" }, { "docid": "20125620", "title": "", "text": "the named Plaintiffs have standing to bring class actions in the states where they reside and purchased Internet Music. See, e.g., In re Flonase, 692 F.Supp.2d at 533-34. Thus, there is no risk that the named Plaintiffs are attempting to “to piggy-back on the injuries of the unnamed class members.” In re Grand Theft Auto, 2006 WL 3039993, at *3 (quoting Payton v. Cnty. of Kane, 308 F.3d 673, 680 (7th Cir.2002)). Plaintiffs claim that they, along with a class of many more individuals, were all injured in similar ways by the same conduct of the Defendants: price-fixing of Internet Music. This conduct is alleged to be the same no matter where any plaintiff resides. This is not a case where nuances in the facts of each alleged injury suggest that standing must be determined first. “The relevant question, therefore, is not whether the Named Plaintiffs have standing to sue Defendants — they most certainly do— but whether their injuries are sufficiently similar to those of the purported Class to justify the prosecution of a [larger] class action.” Id.; accord Blessing, 756 F.Supp.2d at 452; Sheet Metal Workers Nat’l Health Fund v. Amgen Inc., No. 07 Civ. 5295, 2008 WL 3833577, at *9 (D.N.J. Aug. 13, 2008). Therefore, class certification issues are the source of any standing problems iden tified by Defendants at this stage of the litigation. Here, moreover, statutory standing is generally at issue with respect to the state claims. Salsitz, 210 F.R.D. at 97. Class certification is logically antecedent to standing in this case, and the Court will consider standing after class certification has been resolved. See Blessing, 756 F.Supp.2d at 452; In re Buspirone, 185 F.Supp.2d at 377. 2. State-Law Statutory Claims Defendants make two basic arguments as to the pleading of state-law claims. First, they claim that the TCAC contains insufficient allegations of intrastate conduct in states requiring such allegations and that in states without such a requirement, a lack of an intrastate connection fails under the dormant Commerce Clause. Second, they say that Plaintiffs do not properly allege state-law consumer protection claims. a. Intrastate" }, { "docid": "20125588", "title": "", "text": "Opinion & Order LORETTA A. PRESKA, Chief Judge: Before the Court is a joint motion to dismiss a class-action complaint alleging federal and state antitrust violations by major record labels in the distribution of music over the Internet. Defendants include Bertelsmann, Inc.; Sony BMG Music Entertainment; Sony Corporation of America; Capitol Records, Inc. d/b/a EMI Music North America; EMI Group North America, Inc.; Capitol-EMI Music, Inc.; Virgin Records America, Inc.; Time Warner Inc.; UMG Recordings, Inc.; and Warner Music Group Corp. Several individual plaintiffs seek to represent a putative nationwide class of digital music purchasers. The operative complaint before the Court is the Third Consolidated Amended Complaint (“TCAC”), filed June 2, 2010. The Court’s previous judgment dismissing the Second Consolidated Amended Complaint was vacated, and the case returned on remand from the Court of Appeals. Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 327 (2d Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 901, 178 L.Ed.2d 803 (2011). 1. BACKGROUND Because the allegations in the TCAC are, with certain exceptions, the same as those previously considered in published opinions both here and in the Court of Appeals, the Court assumes familiarity with the factual allegations in the TCAC. Stair, 592 F.3d at 317-22; In re Digital Music Antitrust Litig., 592 F.Supp.2d 435, 437-39 (S.D.N.Y.2008). To situate this discussion, a summary of the alleged facts follows. The Court assumes that all nonconclusory facts alleged are true for present purposes. Starr, 592 F.3d at 317 & n. 1. Defendants produce, license, and distribute music sold online (“Internet Music”) and on compact discs (“CDs”). They control eighty percent of the market for digital music in the United States. Defendants Bertlesmann, Inc., Warner Music Group Corp., and EMI launched an online service called MusicNet, a joint venture entity owned and controlled by various Defendants. (TCAC ¶ 67.) Defendants UMG and Sony Corporation of America launched a similar online music service called Duet, later renamed pressplay. (TCAC ¶ 67.) It too was a joint venture. All Defendants signed distribution agreements with MusicNet and pressplay. (TCAC ¶ 67.) These joint ventures, along with the Recording" }, { "docid": "20125649", "title": "", "text": "affects interstate commerce.” Conergy AG v. MEMC Elec. Materials, Inc., 651 F.Supp.2d 51, 61 n. 83 (S.D.N.Y.2009) (collecting cases). Plaintiffs argue that federal antitrust preemption obtains only when there is “little or no impact on local or intrastate commerce.” Two Queens, Inc. v. Scoza, 296 A.D.2d 302, 745 N.Y.S.2d 517, 519 (N.Y.App.Div.2002). Although the authorities quoted by the parties contain broad, categorical language, the state authorities suggest that New York requires an impact on intrastate commerce so as to avoid a dormant Commerce Clause issue. Compare id. (“The question is whether the burden on interstate commerce outweighs the States’ interests.” (internal quotation marks omitted)), with, e.g., Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 108 (2d Cir.2001) (“A statute may violate the well-established ‘dormant’ aspect of the Commerce Clause ... if it imposes a burden on interstate commerce incommensurate with the local benefits secured.” (internal citations omitted)). As Plaintiffs point out, the cases on which Defendants rely involve situations where the defendants had only tangential connections to New York. And as the Court already determined, supra Part II. D.2.a., the TCAC alleges a sufficient intrastate connection to survive this type of argument. The TCAC alleges a “significant impact on intrastate commerce” in New York, Conergy AG, 651 F.Supp.2d at 61, because the end purchasers presumably purchased Internet Music from New York and consumed the product in New York. Moreover, many of the Defendants are headquartered in New York City and/or incorporated in New York, and they clearly conduct significant business in New York. Federal antitrust law does not preempt the Donnelly Act in this case. Defendants’ motion to dismiss the newly added New York claim is DENIED. E. Parent Company Motions to Dismiss Three named defendants, Sony Corporation of America (“SCA”), Bertelsmann, Inc. (“Bertelsmann”), and Time Warner, Inc. (“Time Warner” and, collectively, the “Parent Companies”), move to dismiss the complaint against them because they are parent companies to the relevant actors named in the complaint. These defendants argue that absent allegations allowing the Court to pierce the corporate veil, their separate corporate form entitles them to dismissal. The Court" }, { "docid": "20125630", "title": "", "text": "Federal Trade Commission Act (“FTCA”), “New York has chosen not to include ‘unfair competition’ or ‘unfair’ practices in its consumer protection statute, language that bespeaks a significantly broader reach.” Leider, 387 F.Supp.2d at 296. Accordingly, “anticompetitive conduct that is not premised on consumer deception is not within the ambit of the statute,” id. at 295, because “[t]he statute seeks to secure an honest market place where trust, and not deception, prevails,” Goshen, 746 N.Y.S.2d 858, 774 N.E.2d at 1195 (internal quotation marks omitted). See also In re NMV, 350 F.Supp.2d at 197 (“An antitrust violation may violate section 349, but only if it is deceptive.”). The TCAC does not contain antitrust allegations that “were imbued with a degree of subterfuge,” Leider, 387 F.Supp.2d at 295, as has been the case when courts uphold section 349 claims based on anti-competitive conduct. As the Court found, the TCAC does not allege deception. Plaintiffs’ reliance on cases like In re TFT-LCD (Flat Panel) Antitrust Litigation (In re TFT I), 586 F.Supp.2d 1109, 1127-28 (N.D.Cal.2008), is unpersuasive in this case because those cases deal with an argument about whether defendants made misrepresentations to plaintiffs. Therefore, Defendants’ motion to dismiss the section 349 claim is GRANTED. v. North Carolina Defendants argue that the North Carolina consumer protection statute prohibits “unfair or deceptive” commercial conduct, of which they argue the TCAC lacks allegations. Dalton v. Camp, 353 N.C. 647, 548 S.E.2d 704, 711 (2001). Plaintiffs argue that the TCAC contains sufficient allegations of at least unfair conduct. Having already determined that there are no allegations of deceptive conduct in the TCAC, the Court goes on to consider whether the TCAC contains allegations of unfair conduct. The most persuasive authority arising under North Carolina law holds that price fixing is an unfair practice under that state’s law. See Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397, 403 (N.C.1981) (“A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.”); see also McDaniel v. Greensboro News Co., No. 81 Civ. 132, 1983" }, { "docid": "20125623", "title": "", "text": "and inter state commerce throughout the United States.” (TCAC ¶89.) Pleadings involving similar allegations of intrastate conduct along with conduct throughout the United States in nationwide class actions have survived motions to dismiss in the face of this very argument. E.g., In re Chocolate Confectionary Antitrust Litig., 602 F.Supp.2d 538, 581 (M.D.Pa.2009) (similar pleading sufficient to allege intrastate conduct in Wisconsin); In re Intel Corp. Microprocessor Antitrust Litig., 496 F.Supp.2d 404, 411-14 (D.Del.2007) (District of Columbia); In re NMV, 350 F.Supp.2d at 171-75 (South Dakota, Tennessee & West Virginia). The Court cautions that “[t]he allegations of the [TCAC] certainly could have been more fulsome on this subject.” In re NMV, 350 F.Supp.2d at 171. Nevertheless, the Court must construe the pleadings in a light favorable to Plaintiffs and thus considers allegations of nationwide sales and distribution on essentially the same terms in both intrastate and interstate commerce to be sufficient. See id. Defendants cite California v. Infineon Technologies AG, which they argue holds that similar language is insufficient to plead interstate activity. 531 F.Supp.2d 1124, 1156 (N.D.Cal.2007). That case, unlike this one and others similar to it, does not contain specific allegations of “intrastate” conduct along with allegations of conduct “throughout the United States” and therefore is not persuasive. See In re Chocolate, 602 F.Supp.2d at 581 n. 53 (coming to the same conclusion). Defendants also argue that the antitrust laws of Arizona, Iowa, Minnesota, North Carolina, North Dakota, and Vermont have not been determined to require an intrastate connection and that allegations that lack such a connection would violate the prohibition on state regulation that unduly burdens interstate commerce. See, e.g., Am. Trucking Ass’ns, Inc. v. Mich. Pub. Serv. Comm’n, 545 U.S. 429, 433, 125 S.Ct. 2419, 162 L.Ed.2d 407 (2005). The Court need not tarry here because, as discussed above, reading the TCAC in a light most favorable to Plaintiffs, it contains sufficient allegations of intrastate conduct or effects to pass Constitutional muster without having to construe the limitations on those state laws, if any. Moreover, without getting to the details of the jurisprudence, it suffices to say" }, { "docid": "3494099", "title": "", "text": "the IP Plaintiffs’ claim under the Donnelly Act fails to adequately allege intrastate effects. Several courts have found that the “intrastate effects” requirement is met at the pleading stage by allegations, like those in the instant case, claiming that the anticompetitive conduct caused supracompetitive price effects nationwide. See Sheet Metal Workers, 737 F.Supp.2d at 402-03 (holding that defendants’ lack of intrastate commerce argument was “weak” where plaintiffs alleged that defendants’ conduct caused consumers in each named state, including Arizona, to pay more for Wellbutrin and that such allegations were sufficient at the pleading stage to show effect in Arizona); In re Intel Corp. Microprocessor Antitrust Litig., 496 F.Supp.2d 404, 412 (D.Del.2007) (noting that the Delaware act requires plaintiff to allege a connection with the state, but finding this element satisfied by allegations that the putative class members were injured by Intel’s alleged conduct throughout the United States and in the District of Columbia and denying defendant’s motion to dismiss on this basis); In re Cardizem CD Antitrust Litig., 105 F.Supp.2d 618 (E.D.Mich.2000) (holding that intrastate effect sufficiently alleged where anticompetitive conduct may have occurred outside the state but the product affected by the anticompetitive conduct came to rest in Tennessee causing injury to citizens who purchased the product at artificially inflated prices as a result of defendant’s conduct); (In re New Motor Vehicles Can. Exp. Antitrust Litig., 350 F.Supp.2d 160, 196-97 (D.Me.2004)) (holding that allegations that defendants concerted behavior which resulted in increased price of vehicles and which conduct allegedly affected retail prices throughout the country and in every state necessarily had substantial effects in Tennessee where it was reasonable to infer that defendants wholesaled their vehicles to dealers who sold them in Tennessee); In re Chocolate Confectionary Antitrust Litig., 602 F.Supp.2d 538, 581 (M.D.Pa.2009) (alleging a nationwide price fixing scheme that resulted in price increases in Nevada and elsewhere sufficiently alleged intrastate effects). The court in In re Chocolate, distinguished In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 516 F.Supp.2d 1072 (N.D.Cal.2007), where plaintiffs alleged merely that defendants’ activities had “a substantial effect on foreign and interstate commerce”" }, { "docid": "3494098", "title": "", "text": "antitrust claim. The Court has already rejected this argument, see discussion supra at 659-60, and reaches the same conclusion, for the same reasons, with respect to the antitrust claims asserted under the Donnelly Act. In addition to pleading sufficient facts to plausibly allege a nationwide conspiracy, the ACAC alleges that IP Plaintiff Buttars resides in and purchased packaged ice in New York, that as a result of the nationwide conspiracy each of the IP Plaintiffs has suffered injury in that they have paid more for packaged ice than they would have paid absent the conspiracy and that they have thereby suffered an injury. These facts are sufficient under Twombly to sustain the IP Plaintiffs’ burden at the pleading stage to plausibly suggest a claim under the Donnelly Act. The Court also rejects Defendants’ claim that the IP Plaintiffs’ Donnelly Act claim is barred by the applicable statute of limitations. See discussion infra at 669-70. The Court therefore denies Defendants’ motions to dismiss the IP Plaintiffs’ Donnelly Act claim on these bases. Defendants also argue that the IP Plaintiffs’ claim under the Donnelly Act fails to adequately allege intrastate effects. Several courts have found that the “intrastate effects” requirement is met at the pleading stage by allegations, like those in the instant case, claiming that the anticompetitive conduct caused supracompetitive price effects nationwide. See Sheet Metal Workers, 737 F.Supp.2d at 402-03 (holding that defendants’ lack of intrastate commerce argument was “weak” where plaintiffs alleged that defendants’ conduct caused consumers in each named state, including Arizona, to pay more for Wellbutrin and that such allegations were sufficient at the pleading stage to show effect in Arizona); In re Intel Corp. Microprocessor Antitrust Litig., 496 F.Supp.2d 404, 412 (D.Del.2007) (noting that the Delaware act requires plaintiff to allege a connection with the state, but finding this element satisfied by allegations that the putative class members were injured by Intel’s alleged conduct throughout the United States and in the District of Columbia and denying defendant’s motion to dismiss on this basis); In re Cardizem CD Antitrust Litig., 105 F.Supp.2d 618 (E.D.Mich.2000) (holding that intrastate" }, { "docid": "20125626", "title": "", "text": "particularity (and, in fairness, Defendants do not make this argument). The Court cannot find in the TCAC any cognizable allegations of fraud. Secondly, there is no deception alleged about the nature of the product Plaintiffs purchased or the terms and conditions under which it was sold. This is not a case like In re Intel, where the product was secretly altered to under-perform when joined with complementary technology offered by a competitor and where the defendant threatened and retaliated against customers who dealt with its competitor. 496 F.Supp.2d at 418. Instead, Plaintiffs rely only on allegations that Defendants concealed a price fixing conspiracy in attempting to parry Defendants’ argument. (Pl. 2007 Opp. at 34 n. 39.) However, if “failure to disclose participation in a purported antitrust conspiracy were sufficient to state a consumer-protection claim, then any Section 1 antitrust case would automatically become a consumer-protection case. That is not the law.” In re NMV, 350 F.Supp.2d at 177 n. 22; accord Leider v. Ralfe, 387 F.Supp.2d 283, 295-96 (S.D.N.Y.2005). Finally, although Plaintiffs assert that two other nationwide antitrust cases determined that allegations of price fixing or monopolization alone are enough to allege deceptive or unconscionable conduct, that is not true. In both of those cases, the courts undertook a detailed, fact-intensive analysis of the allegations to determine whether the complaints alleged such conduct. In re NMV, 350 F.Supp.2d at 176-77, 196; see In re Intel, 496 F.Supp.2d at 418. Without such allegations here, the Court can do no more and disagrees with Plaintiffs’ characterization of the law. These preliminary matters determined, the Court proceeds to discuss state consumer protection law claims about which Defendants make arguments. It has been observed that different state consumer protection statutes contain “not only nuances, but differing standards of proof, procedure, substance, and remedies.” Tylka v. Gerber Prods. Co., 178 F.R.D. 493, 499 (N.D.Ill.1998). The Court thus discusses Defendants’ arguments with respect to each state because there is no unifying theme. i.California Plaintiffs agree with Defendants that they do not bring a claim under California Unfair Competition Law for damages because such a claim is" }, { "docid": "20125650", "title": "", "text": "determined, supra Part II. D.2.a., the TCAC alleges a sufficient intrastate connection to survive this type of argument. The TCAC alleges a “significant impact on intrastate commerce” in New York, Conergy AG, 651 F.Supp.2d at 61, because the end purchasers presumably purchased Internet Music from New York and consumed the product in New York. Moreover, many of the Defendants are headquartered in New York City and/or incorporated in New York, and they clearly conduct significant business in New York. Federal antitrust law does not preempt the Donnelly Act in this case. Defendants’ motion to dismiss the newly added New York claim is DENIED. E. Parent Company Motions to Dismiss Three named defendants, Sony Corporation of America (“SCA”), Bertelsmann, Inc. (“Bertelsmann”), and Time Warner, Inc. (“Time Warner” and, collectively, the “Parent Companies”), move to dismiss the complaint against them because they are parent companies to the relevant actors named in the complaint. These defendants argue that absent allegations allowing the Court to pierce the corporate veil, their separate corporate form entitles them to dismissal. The Court agrees. The Parent Companies could be liable directly or as alter egos of entities they own or control. The complaint is insufficient under either theory. Beginning with the straightforward, the complaint alleges no conduct by the Parent Companies that violates the law. The complaint alleges that each Parent Company is a parent of a subsidiary that owns the rights to musical copyrights, royalties, and licensing agreements and that runs the related music operations. (TCAC ¶¶ 21-23, 26.) The Parent Companies have no direct involvement in or ownership of the relevant music licenses. (See TCAC ¶¶ 21-23, 26.) The complaint alleges that the Parent Companies had ownership interests in MusicNet and pressplay, which sold music to customers, and that SCA sold music directly through its website. (TCAC ¶¶ 58-60, 67, 72.) None of this is actionable conduct; an antitrust conspiracy complaint must assert enough “factual matter” to suggest plausibly a preceding agreement. Twombly, 550 U.S. at 555-57, 127 S.Ct. 1955; see DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 55 (1st Cir.1999). Although" }, { "docid": "20125589", "title": "", "text": "previously considered in published opinions both here and in the Court of Appeals, the Court assumes familiarity with the factual allegations in the TCAC. Stair, 592 F.3d at 317-22; In re Digital Music Antitrust Litig., 592 F.Supp.2d 435, 437-39 (S.D.N.Y.2008). To situate this discussion, a summary of the alleged facts follows. The Court assumes that all nonconclusory facts alleged are true for present purposes. Starr, 592 F.3d at 317 & n. 1. Defendants produce, license, and distribute music sold online (“Internet Music”) and on compact discs (“CDs”). They control eighty percent of the market for digital music in the United States. Defendants Bertlesmann, Inc., Warner Music Group Corp., and EMI launched an online service called MusicNet, a joint venture entity owned and controlled by various Defendants. (TCAC ¶ 67.) Defendants UMG and Sony Corporation of America launched a similar online music service called Duet, later renamed pressplay. (TCAC ¶ 67.) It too was a joint venture. All Defendants signed distribution agreements with MusicNet and pressplay. (TCAC ¶ 67.) These joint ventures, along with the Recording Industry Association of America, provided a forum for Defendants to exchange pricing information, terms of sale, and use restrictions. (TCAC ¶¶ 34, 67-68, 87-88.) Plaintiffs allege that Defendants conspired to fix the price, terms of sale, and restrictions on the use of Internet Music through these joint ventures. (TCAC ¶¶ 72, 98.) Defendants used these joint ventures as a forum to discuss their desire to engage in the alleged conduct, to share licensing terms and pricing information, and to police the alleged agreements, among other things. (TCAC ¶¶ 67-68, 98.) Through the use of Most Favored Nation (“MFN”) clauses in Defendants’ licensing agreements, a licensor would receive at least equivalent licensing terms as another licensor. (TCAC ¶¶ 92, 99.) The alleged effect of the MFN agreements was to set a wholesale price floor for Internet Music of seventy cents per song. (TCAC ¶¶ 99-100.) Plaintiffs allege that despite the fact that the price of distributing Internet Music fell to essentially zero, the wholesale price of Internet Music increased uniformly. (TCAC ¶¶ 99-100.) This was due" }, { "docid": "785256", "title": "", "text": "trade and monopolize the Internet Yellow pages market by controlling Internet access points through which competing Internet Yellow Pages providers offered their services. In this way, users who sought Yellow Pages information were directed by web browsers exclusively to the defendants’ companies. Recognizing that D.C.Code § 25MD3 requires the plaintiff to allege a “connection with this jurisdiction,” the court found that “the plaintiff ha[d] satisfied this separate requirement by alleging the defendants’ anti-competitive activity impacts upon Internet users and businesses purchasing Internet Yellow Pages advertisements in the District of Columbia.” Id. at 45. Construing the allegations of the Complaint in the light most favorable to Class Plaintiffs and drawing all reasonable inferences in favor of Class Plaintiffs as the Court must on a Motion To Dismiss, the Court concludes that Class Plaintiffs have alleged an impact upon consumers in the District of Columbia through their allegations that the putative class members were injured by Intel’s alleged conduct throughout the United States and in the District of Columbia. Accordingly, at this juncture, the Court will deny Intel’s Motion To Dismiss Class Plaintiffs’ claims under the antitrust laws of the District of Columbia. 2. Mississippi Mississippi’s antitrust laws prohibit agreements to “restrain trade,” “increase ... the price of a commodity,” or “hinder competition in the production, importation, ... sale or purchase of a commodity.” Miss.Code Ann. § 75-21-1. In In re New Motor Vehicles Canadian Export Antitrust Litig. (“NMV”), 350 F.Supp.2d 160, 171 (D.Me.2004), the defendants raised the same argument that Intel raises here, that Mississippi’s antitrust laws are limited to intrastate conduct and the plaintiffs’ failure to allege state specific activity required dismissal of their complaint. However, the NMV court recognized that the Mississippi Supreme Court has characterized sales and distribution within Mississippi as intrastate in character when made “ ‘after the ... products [have] been received ... in this state and ... incorporated into the general mass of property therein.’ ” Id. (quoting Standard Oil Co. of Kentucky v. State, 107 Miss. 377, 65 So. 468, 471 (1914)). In Standard Oil, the Mississippi Supreme Court went on to conclude that" }, { "docid": "20125663", "title": "", "text": "compared to CDs.” Starr, 592 F.3d at 323. . The TCAC amends its allegations to include violations of Illinois state law. (TCAC ¶¶ 146-149.) Illinois is a state from which no named plaintiff hails, making the total fourteen states, a one-state increase from the thirteen states identified in the parties’ papers. (Pl. 2007 Opp. at 25 n. 23.) . In supplemental briefing, Defendants state that the state statutes \"apply exclusively to intrastate — not interstate — conduct.” (Def. Response to PL Supp. Auth. Dated June 10, 2010, at 5.) If this argument is that relief under these statutes is exclusive of any applicable federal relief for interstate activity, the Court rejects it. \"[T]he Court does not interpret the statutes to be inapplicable where the anticompetitive conduct may have both interstate effects and, as concerns the particular state in question, intrastate impact.” Sheet Metal Workers, 2008 WL 3833577, at *12 (collecting cases). . Plaintiffs dispute that Michigan, West Virginia, and South Dakota require intrastate allegations. The Michigan statute explicitly requires the unlawful restraint of trade to be in \"a relevant market,” Mich. Comp. Laws Ann. § 445.771, which it defines as an area of competition, \"all or any part of which is within the state,” Id. § 445.772. Thus, the Court assumes that an allegation of intrastate conduct is required in Michigan. West Virginia and South Dakota have statutes that courts have held to be ambiguous as to whether the conspiracy or the conduct must be alleged to have been within the state. S.D. Codified Laws § 37-1-3.1 (\"[A] conspiracy ... in restraint of trade or commerce any part of which is within this state is unlawful.”); W. Va.Code § 47-18-3 (similar); see, e.g., In re NMV, 350 F.Supp.2d at 172, 175 (holding statutes ambiguous). In light of this potential ambiguity, courts have held that the states intended to cover as broad a range of activities as possible and that the statutes require allegations of some conduct within the state. In re Intel Corp. Microprocessor Antitrust Litig., 496 F.Supp.2d 404, 414 (D.Del.2007); In re NMV, 350 F.Supp.2d at 172, 175. Accordingly," }, { "docid": "20125625", "title": "", "text": "that states may not regulate wholly interstate activity, but they are not limited to regulating wholly intrastate activity. See id.; Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169-72 (2d Cir.2005). The Court rejects Defendants’ argument as to pleading under the laws of these six states. The motion as to the state-law antitrust claims is DENIED. b. Consumer Protection Laws Defendants argue that the TCAC insufficiently pleads violations of the consumer protection laws of California, the District of Columbia, Florida, Kansas, Maine, Massachusetts, Nebraska, New Mexico, New York, and North Carolina because the TCAC does not plead the requisite deceptive or fraudulent conduct under those statutes. As a general matter, whether the TCAC contains allegations of deception or fraud affects the analysis of allegations under each state’s consumer protection laws. Thus, the Court first addresses this issue. The TCAC does not contain allegations of fraudulent or deceptive conduct. First of all, the TCAC does not purport to comply with Federal Rule of Civil Procedure 9(b) and plead any allegation of fraud with particularity (and, in fairness, Defendants do not make this argument). The Court cannot find in the TCAC any cognizable allegations of fraud. Secondly, there is no deception alleged about the nature of the product Plaintiffs purchased or the terms and conditions under which it was sold. This is not a case like In re Intel, where the product was secretly altered to under-perform when joined with complementary technology offered by a competitor and where the defendant threatened and retaliated against customers who dealt with its competitor. 496 F.Supp.2d at 418. Instead, Plaintiffs rely only on allegations that Defendants concealed a price fixing conspiracy in attempting to parry Defendants’ argument. (Pl. 2007 Opp. at 34 n. 39.) However, if “failure to disclose participation in a purported antitrust conspiracy were sufficient to state a consumer-protection claim, then any Section 1 antitrust case would automatically become a consumer-protection case. That is not the law.” In re NMV, 350 F.Supp.2d at 177 n. 22; accord Leider v. Ralfe, 387 F.Supp.2d 283, 295-96 (S.D.N.Y.2005). Finally, although Plaintiffs assert that two" }, { "docid": "20125615", "title": "", "text": "summarize: the TCAC does not allege a sufficient linkage between the CD market and the Internet Music market to make its allegations regarding the CD market cognizable for antitrust purposes. In addition, the TCAC alleges an injury that is too attenuated from the source of the alleged malfeasance to confer antitrust standing on the CD-purchaser plaintiffs. The TCAC merely pairs an allegation of a motive with an allegation of consequential harm to assert antitrust standing. The Supreme Court held specifically that this approach, combined with the other factors present here, is insufficient to confer antitrust standing. Associated Gen., 459 U.S. at 545, 103 S.Ct. 897 (“We conclude, therefore, that [plaintiffj’s allegations of consequential harm resulting from a violation of the antitrust laws, although buttressed by an allegation of intent to harm [plaintiff], are insufficient as a matter of law.”). This being the third amended complaint involving factual allegations that do not involve the CD-purchaser plaintiffs, these claims are DISMISSED with prejudice. D. State-Law Claims Defendants reassert three state-law-based arguments that were made but not addressed previously: they argue that (1) Plaintiffs lack standing to assert claims on behalf of residents of states not included in this action; (2) Plaintiffs claims fail under state-law pleading requirements; and (3) Plaintiffs’ unjust enrichment claims are barred under the Illinois Brick doctrine. Defendants also argue that Plaintiffs’ newly added claims under Illinois and New York antitrust statutes are barred. The Court addresses these arguments in turn. In considering substantive state-law claims, the Court “follow[s] a decision of the highest state court ‘unless there are very persuasive grounds for believing that the state’s highest court no longer would adhere to it.’ ” In re New Motor Vehicles Can. Exp. Antitrust Litig. (In re NMV), 350 F.Supp.2d 160, 169 (D.Me.2004) (quoting 19 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4507).' “In the absence of a ruling by the state’s highest court, [the Court] consider^] and may follow intermediate court rulings unless [it is] convinced that the state’s highest court would decide otherwise.” Id. However, the standing argument, which" }, { "docid": "20125624", "title": "", "text": "1156 (N.D.Cal.2007). That case, unlike this one and others similar to it, does not contain specific allegations of “intrastate” conduct along with allegations of conduct “throughout the United States” and therefore is not persuasive. See In re Chocolate, 602 F.Supp.2d at 581 n. 53 (coming to the same conclusion). Defendants also argue that the antitrust laws of Arizona, Iowa, Minnesota, North Carolina, North Dakota, and Vermont have not been determined to require an intrastate connection and that allegations that lack such a connection would violate the prohibition on state regulation that unduly burdens interstate commerce. See, e.g., Am. Trucking Ass’ns, Inc. v. Mich. Pub. Serv. Comm’n, 545 U.S. 429, 433, 125 S.Ct. 2419, 162 L.Ed.2d 407 (2005). The Court need not tarry here because, as discussed above, reading the TCAC in a light most favorable to Plaintiffs, it contains sufficient allegations of intrastate conduct or effects to pass Constitutional muster without having to construe the limitations on those state laws, if any. Moreover, without getting to the details of the jurisprudence, it suffices to say that states may not regulate wholly interstate activity, but they are not limited to regulating wholly intrastate activity. See id.; Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169-72 (2d Cir.2005). The Court rejects Defendants’ argument as to pleading under the laws of these six states. The motion as to the state-law antitrust claims is DENIED. b. Consumer Protection Laws Defendants argue that the TCAC insufficiently pleads violations of the consumer protection laws of California, the District of Columbia, Florida, Kansas, Maine, Massachusetts, Nebraska, New Mexico, New York, and North Carolina because the TCAC does not plead the requisite deceptive or fraudulent conduct under those statutes. As a general matter, whether the TCAC contains allegations of deception or fraud affects the analysis of allegations under each state’s consumer protection laws. Thus, the Court first addresses this issue. The TCAC does not contain allegations of fraudulent or deceptive conduct. First of all, the TCAC does not purport to comply with Federal Rule of Civil Procedure 9(b) and plead any allegation of fraud with" }, { "docid": "20125665", "title": "", "text": "Plaintiffs' objections to having to allege intrastate conduct or effects as to South Dakota and West Virginia are meritless, and the Court assumes that those states require an allegation of intrastate conduct. . “It would have been helpful if the plaintiffs had added allegations of state-directed activity.” In re NMV, 350 F.Supp.2d at 169 n. 2. For example, simply adding an allegation of conduct throughout the United States \"and in each listed state” would be superior pleading. . Defendants offer no developed argument or legal authority for their claim that the TCAC is insufficient under the District of Columbia, Florida, Maine, Massachusetts, or Nebraska consumer protection laws. Absent Defendants’ invocation of some legal basis to dismiss these claims, the Court will not do so. The claims under these states’ laws may proceed. . The Court rejects Defendants’ first argument: that unjust enrichment is disallowed where an adequate remedy at law exists. This argument is premature because Plaintiffs may plead in the alternative. In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 544 (D.N.J.2004). Likewise, Defendants' argument that Plaintiffs’ lack of privity with at least some defendants is groundless because, as Plaintiffs argue (without Defendants’ refutation), no state at issue here has a privity requirement to plead unjust enrichment. Id.; see PL 2007 Mem. at 38 & n. 47 (citing cases). Defendants' reliance on cases discussing incidental benefits is misplaced; this case may involve certain indirect benefits, but it does not involve incidental benefits. . Of the other states in which plaintiffs purportedly reside as pleaded in this action, Arizona, California, the District of Columbia, Kansas, Maine, Michigan, Minnesota, Nevada, New Mexico, South Dakota, Tennessee, Vermont, West Virginia, and Wisconsin have passed Illinois Brick repealer laws or their courts have held that state law permits indirect purchaser suits by individuals. The Court relies on the following authority from each state in holding that these states do not follow Illinois Brick: Cal. Bus. & Prof.Code § 16750(a); D.C.Code § 28-4509(a); Kan. Stat. Ann. § 50-161; Me.Rev.Stat. tit. 10, § 1104(1); Mich. Comp. Laws § 445.778(2); Minn.Stat. § 325D.57; Nev. Rev. Stat. § 598A.210(2);" } ]

[ { "docid": "626892", "title": "", "text": "JWR for its losses. The court may exercise its contempt power either to secure compliance or to compensate the injured party for the actions of the contemnor. United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). The Local argues that it was improper to assess the fine after the strike, and therefore the contempt, ended. Accepting this argument would invite lightning-quick breaches of court orders, timed to make it impossible for the court to act during the breach. That is untenable and is rejected. See San Antonio Tel. Co. v. Am. Tel. & Tel. Co., 529 F.2d 694 (5th Cir. 1976) (compensatory award after contempt ends); cert. denied sub nom. Ashley v. San Antonio Tel. Co., 429 U.S. 999, 97 S.Ct. 527, 50 L.Ed.2d 610; Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965), cert. denied, 384 U.S. 929, 86 S.Ct. 1380, 86 S.Ct. 1445, 16 L.Ed.2d 532 (1966). The decision of the district court is AFFIRMED. . Employees of JWR’s other mines are represented by other local unions, each of which is affiliated with the UMWA. . The record shows that picketing in the Alabama coal fields does not require signs, placards and marching lines usually associated with picketing. The art of nonverbal communication has been keenly developed. It is sufficient for one to park a car on the side of the road near the entranceway to a mine. The message is well understood and honored. . Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). . The individuals did not appeal. . Mr. Johnson testified that if he and the other union officers had returned to work many of the members would have done likewise. . As was apparently the situation after completion of the arbitration proceeding. The result, the discharge being reduced to suspension, was quite rapidly disseminated. . See also the discussion by Mr. Justice Douglas in McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed.2d 599 (1949). . Unions have been held liable for concerted actions" } ]

[ { "docid": "23088360", "title": "", "text": "McComb v. Jacksonville Paper Co., 336 U.S. 187, 193, 69 S.Ct. 497, 93 L.Ed. 599 (1949). Thus, this Court may assess attorney’s fees if Arendall’s violation of the discharge injunction was willful. The Fourth Circuit Court of Appeals has not heretofore addressed what constitutes a “willful” violation of the discharge injunction pursuant to § 524. The Eleventh Circuit Court of Appeals has considered the appropriate standard to apply to conclude a violation of the § 524 injunction was willful, reasoning that “the focus of the court’s inquiry in civil contempt proceedings is not on the subjective beliefs or intent of the alleged contemnors in complying with the order, but whether in fact their conduct complied with the order at issue.” In re Hardy, 97 F.3d at 1390 (quoting Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.1990)). The court in that case analogized to the test that it had previously adopted to determine willfulness in violating the automatic stay provision of § 362 in Jove Eng’g, Inc. v. I.R.S. (In re Jove Eng’g, Inc.), 92 F.3d 1539 (11th Cir.1996). There the court concluded that the defendant would be found in contempt if it: “(1) knew that the automatic stay was involved and (2) intended the actions which violated the stay.” In re Hardy, 97 F.3d at 1390 (quoting In re Jove Eng’g, 92 F.3d at 1555). The court found such a measure appropriate in the context of a § 524 proceeding, writing “[tjhis test is likewise applicable to determining willfulness for violations of the discharge injunction of § 524.” In re Hardy, 97 F.3d at 1390. The Court agrees with the holding in Hardy that the standard used for determining whether a stay violation was willful pursuant to § 362 may be used to determine whether a violation of the discharge violation was willful. In a civil contempt proceeding, the state of mind with which the contemnor violated a court order is irrelevant and therefore good faith, or the absence of an intent to violate the order, is no defense. See McComb, 336 U.S. at 191, 69 S.Ct." }, { "docid": "16109486", "title": "", "text": "contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court.” Bennett, 298 F.3d at 1069. Because the “metes and bounds of the automatic stay are provided by statute and systematically applied to all cases,” Jove Eng’g v. IRS (In re Jove Eng’g), 92 F.3d 1539, 1546 (11th Cir.1996), there can be no doubt that the automatic stay qualifies as a specific and definite court order. In determining whether the con-temnor violated the stay, the focus “is not on the subjective beliefs or intent of the contemnors in complying with the order, but whether in fact their conduct complied with the order at issue.” Hardy v. United States (In re Hardy), 97 F.3d 1384, 1390 (11th Cir.1996) (internal citations omitted); accord McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949) (Because civil contempt serves a remedial purpose, “it matters not with what intent the defendant did the prohibited act.”). The threshold standard for imposing a civil contempt sanction in the context of an automatic stay violation therefore dovetails with the threshold standard for awarding damages under § 362(h). Pace, 67 F.3d at 191 (incorporating the willfulness standard of § 362(h) as explicated by Pinkstaff v. United States (In re Pinkstaff), 974 F.2d 113, 115 (9th Cir.1992)). Under both statutes, the threshold question regarding the propriety of an award turns not on a finding of “bad faith” or subjective intent, but rather on a finding of “willfulness,” where willfulness has a particularized meaning in this context: “[W]illful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Pace, 67 F.3d at 191; see also Pinkstaff, 974 F.2d at 115; Hardy, 97 F.3d at 1390; cf. Bennett, 298 F.3d at 1069 (describing standard for imposing civil contempt sanctions under § 105(a) for violation of discharge injunction). We" }, { "docid": "23357348", "title": "", "text": "to a contempt of court, the rule does not provide a “safe harbor” to a litigant for withdrawing a claim, defense, etc., after a show cause order has been issued on the court’s own initiative. Fed.R.Civ.P. 11 advisory committee’s note to 1993 Amendments. We have noted that the Advisory Committee’s “akin to a contempt” standard is applicable to sanction proceedings initiated by a court, see Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1329 (2d Cir.1995), as have other circuits, see Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 151 (4th Cir.2002); Barber v. Miller, 146 F.3d 707, 711 (9th Cir.1998). Courts have taken the Advisory Committee’s note to mean that sua sponte Rule 11 sanctions must be reviewed with “particular stringency.” Hunter, 281 F.3d at 153; United National Insurance Co. v. R & D Latex Corp., 242 F.3d 1102, 1115 (9th Cir.2001). However, we have not explicitly ruled on the applicable mens rea standard in such circumstances. The mental state applicable to liability for Rule 11 sanctions initiated by motion is objective unreasonableness, i.e., liability may be imposed if the lawyer’s claim to have evidentiary support is not objectively reasonable. See Ted Lapidus, S.A. v. Vann, 112 F.3d 91, 96 (2d Cir.1997). That standard is appropriate in circumstances where the lawyer whose submission is challenged by motion has the opportunity, afforded by the “safe harbor” provision, to correct or withdraw the challenged submission. P & E contends that, because the “safe harbor” protection does not exist when a lawyer’s submission is challenged in a show cause proceeding initiated by a trial judge, the more rigorous standard of bad faith should apply. That position draws support from the Advisory Committee’s expectation that court-initiated sanction proceedings will ordinarily be used only in situations that are “akin to a contempt of court.” We have previously held that when courts are acting either pursuant to their inherent powers or their statutory power to impose contempt sanctions upon attorneys while those attorneys are engaged in matters intended to further the interests of their clients, a finding of bad faith on the part of the" }, { "docid": "8684493", "title": "", "text": "(D.C.Cir.1981). The “intent of the recalcitrant party is irrelevant” in a civil contempt proceeding because, unlike a criminal contempt proceeding, a civil contempt action is' “a remedial sanction used to obtain compliance with a court order or to compensate for damage sustained as a result of noncompliance.” Id. at 1184; see also McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949) (“The absence of wilfulness does not relieve from civil contempt---- Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act.”). On the other hand, an alleged contemnor’s good faith is not entirely irrelevant to the ultimate determination of contempt. Several courts have held that a party charged with contempt may assert a defense of good faith substantial compliance, although at least one district court judge in our jurisdiction has questioned the viability of this defense. Assuming that the defense survives in this circuit, however, the burden of proving good faith.and substantial compliance is on the party asserting the defense, and Kamber has failed to meet that burden in this case. In order to prove good faith substantial compliance, a party must demonstrate that it “ ‘took all reasonable steps within [its] power to comply with the court’s order.’ ” Glover v. Johnson, 934 F.2d 703, 708 (6th Cir.1991) (quoting Peppers v. Barry, 873 F.2d 967, 969 (6th Cir.1989)). Although a party’s good faith may be a factor in determining whether substantial compliance occurred, and may be considered in mitigation of damages, good faith alone is not suffi eient to excuse contempt. See, e.g., Oil, Chemical & Atomic Workers Int’l Union v. NLRB, 547 F.2d 575, 581 & n. 5 (D.C.Cir.1977) (as amended) (holding that, at least in the second-stage of a contempt proceeding, “good faith or lack of wilfulness is not a defense that the petitioner must negate”); Doe v. General Hospital, 434 F.2d 427, 431 (D.C.Cir.1970) (holding that physician’s good faith misunderstanding as to scope of preliminary injunction did not constitute a defense to a civil contempt order for violating that injunction). Kamber" }, { "docid": "19141503", "title": "", "text": "n. 2 (D.C.Cir.1987) (noting that “in light of the remedy’s extraordinary nature, courts rightly impose it with caution.”). Cf. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980) (admonishing courts to exercise their inherent powers with “restraint and discretion.”). Two elements must be established before a party may be held in civil contempt for violating an order. Armstrong v. Executive Office of the President, 1 F.Sd 1274, 1289 (D.C.Cir.1993). First, the Court must have issued an order that is clear and reasonably specific. Id. at 1289; Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16-17 (1st Cir.1991) (noting that in order for a party to be held in civil contempt, the court must have issued \"a clear and unambiguous order that left no reasonable doubt as to what behavior was expected and who was expected to behave in the intended fashion.\"). In determining whether an order is clear and reasonably specific, courts apply \"an objective standard that takes into account both the language of the order and the circumstances surrounding the issuance of the order.\" United States v. Young, 107 F.3d 903, 907 (D.C.Cir.1997). See also Project B.A.S.I.C., 947 F.2d at 16-17 (finding that \"the party enjoined must be able to ascertain from the four corners of the order precisely what acts are forbidden\" or what acts are required.”). Second, the putative contemnor must have violated the court’s order. Armstrong, 1 F.3d at 1289 (recognizing that “civil contempt will lie only if the putative contemnor has violated an order that is clear and unambiguous.”). It is not necessary in civil contempt proceedings for the violation of the court order to be intentional or for the putative contemnor to have acted in bad faith. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 LEd. 599 (1949) (opining that since the purpose of civil contempt is remedial, \"it matters not with what intent the defendant did the prohibited act.\"); Food Lion, 103 F.3d at 1016 (observing that \"the law is clear in this circuit that `the [contem-nor's] failure to comply with the" }, { "docid": "9859957", "title": "", "text": "U.S.C. § 106(a)(3); see Jove, 92 F.3d at 1554. This court has found that “§ 106(a) unequivocally waives sovereign immunity for court-ordered monetary damages under § 105, although such damages may not be punitive.” Jove, 92 F.3d at 1554. Therefore, Hardy may seek any “necessary or appropriate” monetary relief under the statutory contempt powers of § 105 for violation of the discharge injunction. 3. Liability for Contempt under § 105 While a defendant may be cited for contempt under the court’s inherent powers only upon a showing of “bad faith,” Mroz, 65 F.3d at 1575, IRS may be hable for contempt under § 105 if it willfully violated the permanent injunction of § 524. Jove, 92 F.3d at 1558-54, see Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir.1995). This court has stated that “the focus of the court’s inquiry in civil contempt proceedings is not on the subjective beliefs or intent of the alleged contemnors in complying with the order, but whether in fact their conduct complied with the order at issue.” Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.1990) (quoted in Jove, 92 F.3d at 1554). In Jove, this court adopted a two-pronged test to determine willfulness in violating the automatic stay provision of § 362. Under this test the court will find the defendant in contempt if it: “(1) knew that the automatic stay was invoked and (2) intended the actions which violated the stay.” Jove, 92 F.3d at 1555. This test is likewise applicable to determining willfulness for violations of the discharge injunction of § 524. If the court on remand finds, as the plaintiff claims, that IRS received notice of Mr. Hardy’s discharge in bankruptcy, and was thus aware of the discharge injunction, Mr. Hardy will then have to prove only that IRS intended the actions which violated the stay. We remand to the district court for factual determinations and for determination of IRS’s liability for willful violations of § 524 in accordance with the guidelines set forth in Jove. Sanctions Available Under §§105 1. Coercive Sanctions The court" }, { "docid": "23357361", "title": "", "text": "to believe that court-initiated show cause orders — which typically relate to matters that are akin to contempt of court — are properly treated somewhat differently from party-initiated motions. Letter from Hon. Sam C. Pointer, Chairman, Advisory Committee on Civil Rules, to Hon. Robert E. Keeton, Chairman, Standing Committee on Rules of Practice and Procedure (May 1, 1992), reprinted in 146 F.R.D. 519, 525 (1993). UNDERHILL, District Judge, dissenting. Prior to 1983, the imposition of sanctions under Rule 11 required a finding of subjective bad faith. When amending Rule 11 in 1983, however, the drafters abandoned the subjective bad faith standard and adopted a standard of “reasonableness under the circumstances.” Since adoption of the 1983 amendments, the Supreme Court and every court of appeals has held that district courts should apply an objective reasonableness test when deciding whether Rule 11 has been violated. With today’s decision, the Second Circuit becomes the first and only court to hold that the 1993 amendments to Rule 11 reverted to the pre-1983 subjective bad faith standard for even a subset of Rule 11 sanctions. The majority bases its holding principally on a single sentence from the Advisory Committee notes to the 1993 amendments and on its own policy analysis. In my view, neither basis can support the weight of today’s decision. Accordingly, I respectfully dissent. The Plain Meaning of Rule 11 Interpretation of Rule 11 begins with its text, because this Court must “interpret Rule 11 according to its plain meaning.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 391, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). A plain reading of Rule 11 demonstrates that a single mens rea requirement applies to sanctionable conduct, regardless of whether a court or a party initiates sanctions proceedings and regardless of whether counsel had an opportunity to withdraw the offending submission. Rule 11 has four subsections. Section (a) establishes the requirement that every paper filed with the court shall be signed. Section (b) contains a statement of the conduct — and the state-of-mind requirement — to which counsel and parties will be held under the rule." }, { "docid": "19847284", "title": "", "text": "does not require a specific intent to violate the automatic stay,” but only that the defendant knew of the automatic stay and intended the acts that violated the stay); Budget Service Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 292-93 (4th Cir.1986) (Willful violation where contemnor “knew of the pending petition and intentionally attempted to repossess the vehicles in spite of it.”). We have similarly stated that “the focus of the court’s inquiry in civil contempt proceedings is not on the subjective beliefs or intent of the alleged con-temnors in complying with the order, but whether in fact their conduct complied with the order at issue.” Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.1990). The Supreme Court explained: The absence of wilfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance. Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949). In this case, the district court stated “[t]here was absolutely no malice and nothing approaching ‘arrogant defiance’ or reckless disregard ... [a] computer was, perhaps, not finely tuned.” In re Jove Engineering, Inc., 171 B.R. 387, 394 (N.D.Ala.1994). The court declined to find IRS in contempt because “all the purported violations were inadvertent and could have been remedied with a phone call.” Jove, 171 B.R. at 394. The court expressly held there were no willful violations and, “[e]ven if, technically, there were [willful violations], the circumstances do not call for punishment.” Id. at 395 n. 20. We disagree with the trial court’s holding of no willful violations. Under the general “willful violation” test used by other circuits, IRS’s conduct was in contempt because IRS (1) knew the automatic stay was invoked and (2) intended the actions which violated the stay. There is no dispute IRS knew the automatic stay was invoked based" }, { "docid": "18759683", "title": "", "text": "the proceedings in any case unreasonably and vexatiously.” 28 U.S.C. Section 1927. The power to sanction similar conduct by the litigants themselves is based upon this Court’s inherent power to protect the orderly administration of justice and maintain the authority and dignity of the Court. 11 U.S.C. 105(a); 28 U.S.C. § 1481. See, In re Roadway Express, Inc., v. Piper, et al., 447 U.S. 752, 764-65, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1979); see also, Knorr Brake Corp. v. Harbil, Inc., 556 F.Supp. 484, 486 n. 3 (D.C.Ill.1983). In the recent case of U.S. v. Blodgett, 709 F.2d 608, 610 (9th Cir.1983), the Court of Appeals noted that unlike sanctions under Section 1927 which require a finding of reckless or actual bad faith conduct, sanctions under the Court’s inherent power merely require a finding that the conduct constituted or was tantamount to bad faith. It has already been determined that the conduct of both Beaumont and Hays falls into the latter category and is subject to this Court’s inherent contempt power. Where as here, the purpose of the contempt action is to coerce compliance, deter future frivolous conduct, and compensate for injuries suffered by a private party, the contempt is civil and this Court has discretion to fashion an appropriate remedy. See, e.g., McComb v. Jacksonville Paper Co., 336 U.S. 187, 193, 69 S.Ct. 497, 500, 93 L.Ed. 599 (1949); In re Reed, 11 B.R. 258, 276-277 (D.Utah 1981); In re Johns-Manville Corp., 26 B.R. 919, 923 (S.D.N.Y.1983). As long as the award is not punitive, the remedy may include monetary sanctions representing the actual loss to opposing parties and an amount necessary to restore such parties to their pre-con-tempt position. See, In re Zartun, 30 B.R. 543, 546 (9 Cir.1983). Dismissal is a common sanction when the case is found to have been filed in bad faith. In re Thirtieth Place, Inc., supra, 30 B.R. at 506. Where appropriate, in order to avoid future abuses of the Bankruptcy Code, the dismissal should be given res judicata effect, and a bar to future filings for a specified period of" }, { "docid": "3710690", "title": "", "text": "in force when D’Alterio filed its answer to the complaint stated that an attorney’s signature on a pleading certifies that “there is good ground to support [the pleading]; and that it is not interposed for delay.” It allowed a court to take “disciplinary action” for “a wilful violation of this rule”. Courts were reluctant to impose sanctions for the filing of unsupported documents under this language and did so only on a showing of subjective bad faith. Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1166 (7th Cir.1983); Nemeroff v. Abelson, 620 F.2d 339, 350 (2d Cir.1980). The district court did not find subjective bad faith; it found only negligence. A new version of Rule 11, effective August 1, 1983, changed the standard to one of objective reasonableness. Thornton v. Wahl, 787 F.2d 1151, 1154 (7th Cir.1986). The new Rule 11 also requires that the attorney’s belief in the propriety of the filing be “formed after reasonable inquiry [and] well grounded in fact”. There is no evidence that D’Alterio’s lawyers undertook any inquiry, let alone a “reasonable” one, before filing an answer asserting (by denying the opposite assertion) that D’Alterio had shipped a missing segment. The new Rule 11 therefore might support the imposition of sanctions, if it applied. See Brown v. Federation of State Medical Boards, 800 F.2d 168 (7th Cir.1986). Because the amended Rule 11 did not go into force until August 1, however, it does not apply. The Supreme Court’s order promulgating the 1983 amendments states that they “shall govern all civil proceedings thereafter commenced and, insofar as just and practicable, in proceedings then pending.” This is sufficient ground to apply the new Rule 11 to any filing after August 1 in a pending case. It does not, however, support the application of the Rule to prior filings. Hashemi v. Campaigner Publications, Inc., 784 F.2d 1581 (11th Cir.1986). The new language was designed to deter improper filings and to induce lawyers to do better research. As the Advisory Committee’s notes state: “The word ‘sanctions’ in the caption ... stresses a deterrent orientation in dealing with" }, { "docid": "23088359", "title": "", "text": "at 762; Bessette v. Avco Financial Services, Inc., 240 B.R. 147, 154 (D.R.I.1999) (citing Cox v. Zale Delaware, Inc., No. 97 C 4464, 1998 WL 397841 at *3 (N.D.Ill. July 13, 1998); In re Watkins, 240 B.R. at 678.) These sanctions may include actual damages, attorney’s fees and, when appropriate, puni- tive damages. See Mickens v. Waynes-boro Dupont Employees Credit Union, Inc. (In re Mickens), 229 B.R. 114, 118 (Bankr.W.D.Va.1999) Vazquez v. Sears, Roebuck & Co. (In re Vazquez), 221 B.R. 222, 228-29 (Bankr.N.D.Ill.1998); Matter of Arnold, 206 B.R. 560, 568 (Bankr.N.D.Ala.1997); In re Walker, 180 B.R. at 847-49;. 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. See United States v. United Mine Workers, 330 U.S. 258, 303, 67 S.Ct. 677, 91 L.Ed. 884 (1947). The measure of the court’s power in civil contempt proceedings is determined by the requirements of full remedial relief. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 193, 69 S.Ct. 497, 93 L.Ed. 599 (1949). Thus, this Court may assess attorney’s fees if Arendall’s violation of the discharge injunction was willful. The Fourth Circuit Court of Appeals has not heretofore addressed what constitutes a “willful” violation of the discharge injunction pursuant to § 524. The Eleventh Circuit Court of Appeals has considered the appropriate standard to apply to conclude a violation of the § 524 injunction was willful, reasoning that “the focus of the court’s inquiry in civil contempt proceedings is not on the subjective beliefs or intent of the alleged contemnors in complying with the order, but whether in fact their conduct complied with the order at issue.” In re Hardy, 97 F.3d at 1390 (quoting Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.1990)). The court in that case analogized to the test that it had previously adopted to determine willfulness in violating the automatic stay provision of § 362 in Jove Eng’g, Inc. v. I.R.S. (In re Jove Eng’g," }, { "docid": "11109344", "title": "", "text": "and Douglas Trading, (2) Chamberlain from using any funds or assets “whether or not exempt from execution,” and (3) the clerk of court from accepting any filing or papers on Chamberlain’s behalf. The order also ordered banks or financial institutions “wherever located” to freeze the judgment debtors’ assets. Chamberlain now appeals the court’s contempt finding and imposition of sanctions. ISSUES On appeal, Chamberlain raises the following issues: (1) whether the district court properly found him in contempt; and (2) whether the district court erred in imposing sanctions. CONTENTIONS Chamberlain contends that the district court abused its discretion in finding him in contempt for violating the TRO and the order appointing a Receiver. He argues that no evidence demonstrates that he transferred property after the TRO’s effective date< and the district court’s sanctions offend principles of fairness and due pro- or- The government contends that the district court ruled correctly on all issues, DISCUSSION I. Contempt Findings. We review the district court’s civil contempt findings under an abuse of discretion standard. United States v. Roberts, 858 F.2d 698, 700 (11th Cir.1988). Courts have inherent power to enforce compliance with their lawful orders through civil contempt. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). In this case, the government established clearly and convincingly that Chamberlain violated the district court’s orders. Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.1990). Once it made this prima facie showing, the burden of production shifted to Chamberlain to produce evidence explaining his noncompliance. United States v. Rylander, 460 U.S. 752, 755, 103 S.Ct. 1548, 1551, 75 L.Ed.2d 521 (1983). In satisfying this burden, Chamberlain had to offer proof beyond “a mere assertion of inability” and introduce evidence supporting his claim. United States v. Hayes, 722 F.2d 723, 725 (11th Cir.1984). Parties subject to a court’s order demonstrate an inability to comply only by showing that they have made “in good faith all reasonable efforts to comply.” United States v. Ryan, 402 U.S. 530, 534, 91 S.Ct. 1580, 1583, 29 L.Ed.2d 85 (1971). The district court" }, { "docid": "19743217", "title": "", "text": "factual contentions [submitted to the court] have evidentiary support”. Fed. R.Crv.P. 11(b)(3). For obvious reasons, the procedure for sanctions imposed sua sponte differs from when requested by counsel. Compare Fed. R. Civ. P. 11(c)(1)(A) with 11(c)(1)(B). If, after notice and a reasonable opportunity to respond, the court determines Rule 11 sanctions may be warranted, it may sua sponte issue a show-cause order specifying the offending conduct and, following a response, may impose sanctions. Fed.R.Civ.P. 11(c)(1)(B), (c)(3). As hereinafter discussed, “the standard under which the attorney is measured [under Rule 11] is an objective, not subjective, standard of reasonableness under the circumstances”. Whitehead, 332 F.3d at 802 (quoting Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1024 (5th Cir.1994) (emphasis added)). Accordingly, an attorney’s good faith will not, by itself, protect against the imposition of Rule 11 sanctions. Childs, 29 F.3d at 1024. Concerning this objective standard, Jenkins’ attorney claims: where, as here, sanctions are imposed sua sponte, the standard should instead be whether he acted in subjective bad faith, akin to being in contempt of court. He bases this on his not having the 21-day safe-harbor provision he would have had to correct the error under Rule 11(c)(1)(A) for sanctions requested by counsel. E.g., In re Pennie & Edmonds LLP, 323 F.3d 86 (2d Cir.2003). In this regard, the sanctions imposed in Whitehead and Childs were pursuant to counsel’s motion. The sanctions imposed in Childs were under the Rule as amended in 1983, which permitted sua sponte sanctions. The amendment in 1993 concerning such sanctions simply added the above-described show-cause procedure. See Advisory Committee Notes on Fed.R.Civ.P. 11 (1993 Amendments). The rule as amended in 1993 was at issue in Whitehead. That opinion makes no distinction between the initiating basis by which sanctions are being considered. Admittedly, this distinction was not at issue in Whitehead) but, obviously, the reasons for our abuse-of-discretion standard of review being “necessarily very deferential” are as applicable to sua sponte sanctions as to those imposed on motions by counsel. Nor is there any basis for making a distinction based on who initiates" }, { "docid": "19847283", "title": "", "text": "(11th Cir.1995) (“Invocation of a court’s inherent power requires a finding of bad faith.”). Regarding “willfulness,” we have stated that, “[although the definition varies somewhat from context to context, willfulness generally connotes intentional action taken with at least callous indifference for the consequences.” Sizzler Family Steak Houses v. Western Sizzlin Steak House, Inc., 793 F.2d 1529, 1535 (11th Cir.1986). Other circuits find automatic stay violations willful if the violator (1) knew of the automatic stay and (2) intentionally committed the violative act, regardless whether the violator specifically intended to violate the stay. See Price v. United States, 42 F.3d 1068, 1071 (7th Cir.1994) (“A ‘willful violation’ does not require a specific intent to violate the automatic stay.”); Citizens Bank v. Strumpf, 37 F.3d 155, 159 (4th Cir.1994) (“To constitute a willful act, the creditor need not act with specific intent but must only commit an intentional act with knowledge of the automatic stay.”), rev’d on other grounds, — U.S. —, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995); Goodman, 991 F.2d at 618 (“A ‘willful violation’ does not require a specific intent to violate the automatic stay,” but only that the defendant knew of the automatic stay and intended the acts that violated the stay); Budget Service Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 292-93 (4th Cir.1986) (Willful violation where contemnor “knew of the pending petition and intentionally attempted to repossess the vehicles in spite of it.”). We have similarly stated that “the focus of the court’s inquiry in civil contempt proceedings is not on the subjective beliefs or intent of the alleged con-temnors in complying with the order, but whether in fact their conduct complied with the order at issue.” Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.1990). The Supreme Court explained: The absence of wilfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance. Since the purpose is remedial, it matters not with what intent" }, { "docid": "15953044", "title": "", "text": "that every signature on a pleading certifies two things: 1) that the attorney has conducted reasonable inquiry to assure that the pleading is well grounded in fact, and warranted by existing law or constitutes a good faith argument for a change in the existing law; and 2) that the pleading has not been filed in subjective bad faith to harass the opponent or to otherwise prolong the proceedings unnecessarily. 20. The Eleventh Circuit has held that “[t]he [1983] amendment [to Rule 11] abrogated the bad faith standard in favor of a more stringent objective standard.” Hashemi v. Campaigner Publications, Inc., 784 F.2d 1581, 1583 (11th Cir.1986), citing Eastway Construction Corp. v. City of New York, 762 F.2d 243 (2d Cir.1985). 21. The Eleventh Circuit also noted in Donaldson v. Clark, 786 F.2d 1570 (11th Cir.1986), that Rule 11 now imposes an objective good faith standard, such that the attorney must believe after reasonable inquiry that the contents of a pleading are well grounded both in fact and in law. 22. Because the amendments to Rule 11 have imposed an affirmative duty on attorneys to conduct an investigation into whether the statements they are making to the court are supported in fact and in law, the absence of bad faith does not prevent a violation of Rule 11. See Mohammed v. Union Carbide, 606 F.Supp. 252, 260 (E.D.Mich.1985). 23. As one court has explained: Rule 11 imposes an affirmative duty on counsel to make reasonable inquiry into the viability of a pleading before it is signed. Indeed, counsel’s signature is an affirmation that reasonable inquiry was in fact made ... Whether an attorney has complied with the requirements of Rule 11 is determined not by the apparent absence or presence of subjective good faith on the part of the attorney, but rather by the objective reasonableness of his action. Sanctions will therefore be imposed where the court finds that, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is warranted by existing law or a good faith argument for the extension, modification, or reversal of" }, { "docid": "8684492", "title": "", "text": "we affirm the contempt order insofar as it relates to Kamber’s past contempt.- As an initial matter, we note that Kamber has misstated the standard for finding a party in contempt. Federal Rule of Civil Procedure 45(e) provides in part that, “[f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued.” Under this rule, a party moving to hold another party in contempt must demonstrate by clear and convincing evidence that the alleged eontemnor violated the court’s prior order. See, e.g., National Organization for Women v. Operation Rescue, 37 F.3d 646, 662 (D.C.Cir.1994); Washington-Baltimore Newspaper Guild v. Washington Post, 626 F.2d 1029, 1031 (D.C.Cir.1980). However, contrary to Kamber’s contention, a finding of bad faith on the part of the contemnor is not required. Indeed, the law is clear in this circuit that “the [contemnor’s] failure to comply with the court decree need not be intentional.” National Labor Relations Board v. Blevins Popcorn Co., 659 F.2d 1173, 1183 (D.C.Cir.1981). The “intent of the recalcitrant party is irrelevant” in a civil contempt proceeding because, unlike a criminal contempt proceeding, a civil contempt action is' “a remedial sanction used to obtain compliance with a court order or to compensate for damage sustained as a result of noncompliance.” Id. at 1184; see also McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949) (“The absence of wilfulness does not relieve from civil contempt---- Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act.”). On the other hand, an alleged contemnor’s good faith is not entirely irrelevant to the ultimate determination of contempt. Several courts have held that a party charged with contempt may assert a defense of good faith substantial compliance, although at least one district court judge in our jurisdiction has questioned the viability of this defense. Assuming that the defense survives in this circuit, however, the burden of proving good faith.and substantial compliance is on the party asserting the defense," }, { "docid": "16109485", "title": "", "text": "Bankruptcy Code provisions. Walls, 276 F.3d at 507. We further noted that “in any event, § 105(a) authorizes only such remedies as are necessary and appropriate to carry out the provisions of [the Bankruptcy Title].” Id. (internal quotation marks and citation omitted). Because the remedies traditionally associated with “compensatory civil contempt” are adequate to meet the goal of § 105(a), we concluded “no further remedy is necessary.” Id. So here: Congress chose to exclude the Trustee from the reach of § 362(h). The Trustee therefore has no private right of action for damages resulting from automatic stay violations. We will not strain the language of § 105(a) in a misguided attempt to accomplish by judicial fiat that which Congress chose not to do. Rather, the Trustee, like the debtor in Walls, is limited to the civil contempt remedy provided by § 105(a). We must therefore analyze the current contempt sanctions in this case under the legal standards associated with civil contempt awards. (a) The Imposition of Sanctions “The standard for finding a party in civil contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court.” Bennett, 298 F.3d at 1069. Because the “metes and bounds of the automatic stay are provided by statute and systematically applied to all cases,” Jove Eng’g v. IRS (In re Jove Eng’g), 92 F.3d 1539, 1546 (11th Cir.1996), there can be no doubt that the automatic stay qualifies as a specific and definite court order. In determining whether the con-temnor violated the stay, the focus “is not on the subjective beliefs or intent of the contemnors in complying with the order, but whether in fact their conduct complied with the order at issue.” Hardy v. United States (In re Hardy), 97 F.3d 1384, 1390 (11th Cir.1996) (internal citations omitted); accord McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949) (Because civil contempt serves a remedial purpose, “it matters not with what intent the defendant did the prohibited act.”). The" }, { "docid": "1201926", "title": "", "text": "at stake. No notice of criminal contempt as required by law was given. ORS did not challenge the jurisdiction of this court to determine the issues. The U.S. Attorney was not present to press criminal charges against ORS. The fact that debtor sought a contempt citation believing he was denied the statutory relief to which he was entitled under 11 U.S.C. § 362(a) indicates the civil nature of the contempt. ORS argued that it should not be held in contempt because the facts of this case do not demonstrate gross misconduct or bad faith or willful and malicious conduct. ORS relies on In re Hammett, 28 B.R. 1012 (D.C.E.D.Pa.1988). The disobedience, in civil contempt, need not be willful. Reed, supra at 268. The United States Supreme Court has held that “the absence of willfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance [citations omitted]. Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act. The decree was not fashioned so as to grant or withhold its benefits dependent on the state of mind of respondents. It laid on them a duty to obey specified provisions of the statute. An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently.” McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949) (referring to violations of a decree enjoining violations of the Pair Labor Standards Act). The principle of law announced in McComb applies with equal force to the injunction of the automatic stay imposed by 11 U.S.C. § 362(a). Thus, notwithstanding the alleged good faith of ORS, the court finds that the ORS acted in contempt of its order. Having found a civil contempt, the court may award compensation to the debtor. Actual loss measures compensatory fines for civil contempt. Reed, supra at 276. Attorneys fees may" }, { "docid": "23357366", "title": "", "text": "Show Cause Sentence is predictive, not restrictive; the reference to contempt describes the seriousness of the conduct likely to prompt a court to issue a show cause order initiating sanctions proceeding, not the mens rea necessary before sua sponte sanctions can permissibly be imposed. See Proposed Amendments to the Federal Rules of Civil Procedure: Hearing before the Subcommittee on Courts and Administrative Practice of the U.S. Senate Committee on the Judiciary, 103rd Cong. 9 (July 28, 1993) (hereinafter “Courts and Administrative Practice Sub-comm. Hearing ”) (Prepared Statement of Judge Sam C. Pointer, Jr. to Senate Judiciary Committee: “It should be noted that the ‘safe harbor’ applies only to party-initiated motions; these provisions will not prevent court-initiated sanctions, which would be appropriately invoked by the more egregious violations that burden or offend the court.”); id. at 47 (Testimony of Judge Sam C. Pointer, Jr. to Senate Judiciary Committee: “There is no safe harbor in terms of a court-initiated sanction, and in that situation if it appears that somebody is simply filing and making broad, unsubstantiated allegations without any investigation that they could have made, then it seems to me that rule 11 would properly be invoked by the court.”). It bears saying that no court interpreting the 1993 version of Rule 11 has held that a finding of subjective bad faith is required before imposing Rule 11 sanctions under any procedural circumstances. As the majority opinion acknowledges, the decision in Hadges v. Yonkers Racing Corp., 48 F.3d 1320 (2d Cir.1995), mentioned the Show Cause Sentence only in dicta: “In this case, the [district] court indicated that it was imposing sanctions in response to [defendant’s] request and did not state that it was imposing sanctions on Hadges sua sponte.” Id. at 1329. The majority correctly notes that the Fourth and Ninth Circuits have cited the Show Cause Sentence, but those courts have not held that the pre-1983 subjective bad faith standard governs any subset of court-initiated Rule 11 sanctions decisions. Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 151 (4th Cir.2002) (In the absence of the safe harbor, “a court is obligated" }, { "docid": "15953043", "title": "", "text": "on June 2, 1988. The Court denied Plaintiffs’ motion on June 6, 1988. 17. On appeal, the District Court of Appeals affirmed the order of the trial court. CONCLUSIONS OF LAW 18. Rule 11 of the Federal Rules of Civil Procedure was amended in 1983 to provide as follows: Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name ... The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. 19. The plain meaning of the amended rule is that every signature on a pleading certifies two things: 1) that the attorney has conducted reasonable inquiry to assure that the pleading is well grounded in fact, and warranted by existing law or constitutes a good faith argument for a change in the existing law; and 2) that the pleading has not been filed in subjective bad faith to harass the opponent or to otherwise prolong the proceedings unnecessarily. 20. The Eleventh Circuit has held that “[t]he [1983] amendment [to Rule 11] abrogated the bad faith standard in favor of a more stringent objective standard.” Hashemi v. Campaigner Publications, Inc., 784 F.2d 1581, 1583 (11th Cir.1986), citing Eastway Construction Corp. v. City of New York, 762 F.2d 243 (2d Cir.1985). 21. The Eleventh Circuit also noted in Donaldson v. Clark, 786 F.2d 1570 (11th Cir.1986), that Rule 11 now imposes an objective good faith standard, such that the attorney must believe after reasonable inquiry that the contents of a pleading are well grounded both in fact and in law. 22. Because the amendments to Rule" } ]

[ { "docid": "17699307", "title": "", "text": "MEMORANDUM DECISION ROBERT D. MARTIN, Chief Judge. The debtor, LaVern Mueller, filed for Chapter 7 bankruptcy on July 17, 1998, and then brought this adversary proceeding to determine whether he should be discharged from his debt to the State of Wisconsin — Department of Workforce Development (hereinafter ‘WDWD”) for unpaid unemployment insurance contributions of his corporation. The debtor was the sole shareholder and the person in charge of reporting and paying unemployment insurance taxes for Mueller Property Services, Inc. Mueller Property Services, Inc. did not pay unemployment insurance taxes for the third and fourth calendar quarters of 1996 and the first and second calendar quarters of 1997. The parties have stipulated that the tax reports for all the quarters, except the fourth calendar quarter of 1996, were filed late and within the two-year period preceding the debtor’s filing of his Chapter 7 bankruptcy. WDWD concedes that the liability for the fourth calendar quarter of 1996 is dischargeable because the tax report for that period was filed timely. The debtor concedes that apart from discharge in bankruptcy, he is a responsible party liable for the taxes of the corporation under Wis.Stat. § 108.22(9). The debtor argues that his debt to WDWD should be discharged because § 523(a)(1)(A) excepts only debts afforded priority under § 507(a)(2) or (a)(8), and the claim of WDWD does not fit any category afforded priority. WDWD argues that § 523(a)(l)(B)(ii) controls, and the debt should be excepted from discharge because the required returns were filed late and within the two-year period prior to bankruptcy. The plaintiff-debtor has invoked the jurisdiction of this court as a preemptive strike to establish the discharge of his debt. Even when cast as a defendant, the creditor seeking to have a debt excepted from discharge bears the burden of proof, see In re Thirtyacre, 36 F.3d 697, 699 (7th Cir.1994), and the exceptions to discharge found in § 523 are strictly construed against the creditor. Section 523(a)(1)(A) provides: A discharge under section 727 ... of this title does not discharge an individual debtor from any debt ... for a tax or a" } ]

[ { "docid": "176163", "title": "", "text": "and operated the flooring business together until May of 2003. Prior to his resignation, Dominie was the vice president, secretary, and treasurer of CIS. He was in charge of marketing and sales. Jones, a former certified public accountant, was primarily responsible as president of CIS for the daily financial management of the company. Jones and Dominie regularly met to discuss sales and the companies overall financial condition. At a meeting on May 28, 2003, Jones handed Dominie a letter in which Jones disclosed that CIS owed approximately $300,000.00 to the City of Huntsville for sales taxes for the tax years 1995 to 2002, and approximately $150,000.00 to the IRS for 941 payroll taxes for the tax years 1998 to 2002. Jones further disclosed in the letter that financial statements prepared by Jones from 1998 to 2002 were “mostly made-up.” Dominie maintains that although he understood finances were tight, he was shocked to learn that significant amounts of money were owed for unpaid taxes and that financial statements were falsified. Upon learning this information, Dominie immediately resigned. On June 13, 2003, CIS filed bankruptcy under Chapter 7 of the Bankruptcy Code. Schedule E of CIS’s bankruptcy schedules reflects debts owed to various taxing authorities in the amount of $592,600.00. Dominie and Jones are subject to being assessed a 100% penalty for these unpaid taxes as responsible officers of CIS. Additionally, Schedule F reflects debts owed to BPI and Mohawk Corporation in the amounts of $142,683.00 and $185,517.00, respectively. Jones and Dominie personally guaranteed the debts to BPI and Mohawk Corporation. The tax debts and personal guarantees total $920,800.00, the amount' Dominie seeks to have excepted from Jones’ personal bankruptcy. II. CONCLUSIONS OF LAW Section 523(a)(4) of the Bankruptcy Code excepts from discharge any debt for “fraud or defalcation while acting in a fiduciary capacity.” Before the Court can find a debt nondischargeable for fraud or defalcation under this exception, the Court must find that (1) a fiduciary relationship existed between the debtor and creditor; and that (2) the debtor committed fraud or defalcation in the course of that fiduciary relationship. The" }, { "docid": "15628349", "title": "", "text": "by the transferor corporation is discharged by the transferee’s bankruptcy. Our analysis necessarily construes the interrelationship between specific provisions of the Bankruptcy Code and the Internal Revenue Code (I.R.C.). The Bankruptcy Code identifies the purpose of a voluntary bankruptcy discharge as the opportunity to obtain relief from existing debts. See 11 U.S.C. § 524. Though a fresh start for the debtor is the desired outcome, Congress determined that some debts should survive despite this general policy; it explicitly removed certain types of debt from discharge. At issue here is the exception from discharge for a tax that is on or measured by income or gross receipts, which is assessable after commencement of the bankruptcy case. See 11 U.S.C. § 523(a)(1)(A); 11 U.S.C. § 507(a)(8)(A); 11 ■ U.S.C. § 507(a)(8)(A)(iii). Under Bankruptcy Code 11 U.S.C. § 523(a)(1)(A), a debtor will not be discharged from any debt “for a tax” of the kind stated in § 507(a)(8). In turn, § 507(a)(8) specifically identifies a tax on income as exempt from discharge. 11 U.S.C. § 523(a)(1)(A); 11 U.S.C. § 507(a)(8)(A)(iii) (see infra nn. 6, 7). Under these statutory provisions, it appears that any debt not designated a tax, would be discharged in bankruptcy. On the other hand, the I.R.C. provides that a person receiving property from a taxpayer who owes income taxes may be liable for the transferor taxpayer’s tax debt. If so, the I.R.S. may collect the transferor’s income tax liability from the transferee “in the same manner and subject to the same provisions and limitations as in the case of the taxes with respect to which the liabilities were incurred.” 26 U.S.C. § 6901(a); see Commissioner of Internal Revenue v. Stern, 357 U.S. 39, 44-45, 78 S.Ct. 1047, 2 L.Ed.2d 1126 (1958) (existence and extent of transferee liability determined by state law). Considering the provisions of the Bankruptcy Code and the I.R.C. in tandem, the district court held Section 6901 would be nullified if transferee liability was discharged under the Bankruptcy Code, and concluded it must be treated the same as the underlying tax to harmonize the potential conflict between these" }, { "docid": "18806738", "title": "", "text": "supra; see also, Monday v. United States, 421 F.2d 1210 (7th Cir.1970). Willfulness can be found if the responsible person acts or fails to act voluntarily, consciously or intentionally wherein such action or inaction results in the nonpayment of trust funds to the government. U.S. v. Davidson, supra; In re Flemister, supra; In re Turner, supra; In re Twomey, supra. See also, Spivak v. U.S., 370 F.2d 612 (2nd Cir.), cert. denied 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967) (willfulness is established by the voluntary preference of other creditors over the United States). The Debtor filed delinquent federal quarterly tax returns for the corporation, proving that the Debtor knew the funds were owed. There remains an unpaid amount of $6,236.67 due and owing to the IRS. These stipulated facts are sufficient to show that the Debtor was consciously aware of this delinquency and chose not to pay it. Therefore, the Debtor is liable to the IRS for the outstanding trust fund taxes. B. Does this liability constitute a non-dischargeable debt, and if it does, is said debt payable, to the extent possible, from the Debtor’s exemptions? The premier case on the issue of dischargeability of trust fund taxes is U.S. v. Sotelo, 436 U.S. 268, 98 S.Ct. 1795, 56 L.Ed.2d 275 (1978), which held that taxes owing pursuant to § 6672 of the Internal Revenue Code were nondischargeable debts. Although that case was decided under the former Bankruptcy Act, the applicable section, 17(a), has been substantially adopted under § 523(a) of the present Bankruptcy Code, which states in pertinent part: (а) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (1) for a tax or customs duty— (A) of the kind and for the periods specified in section 507(a)(2) or 507(a)(6) of this title, whether or not a claim for such tax was filed or allowed; Section 507(a)(7)(C) specifically includes: (C) a tax required to be collected or withheld and for which the debtor is liable in whatever capacity. Since the enactment of the present Bankruptcy" }, { "docid": "13337489", "title": "", "text": "chapter 7 case has no bearing on the claim treatment in the current chapter 13 case. The IRS alleges that their claim survived the chapter 7 discharge and is now properly listed as secured. I agree with the IRS’ analysis that under § 523(a)(1)(A) the de terminative factor is the type of debt as described in § 507(a)(8) not the status of a possible claim. Bankruptcy Code § 523(a)(1)(A) excepts from a chapter 7 discharge any debt for a tax of the kind and for the periods specified in § 507(a)(8). This exception to discharge applies whether or not a claim for such tax was filed or allowed in the chapter 7 ease. For § 523(a)(1)(A) nondischargeability purposes, § 507(a)(8) describes the kind of tax giving rise to the debt that is nondischargeable regardless of whether a claim was filed or allowed in the chapter 7 case. In this case, the taxes at issue, a trust fund recovery penalty assessed against the Debtor as a responsible officer for the failure of an employer to pay Form 941 federal employment tax obligations are of the kind described in § 507(a)(8)(C), “a tax required to be collected or withheld and for which the debtor is liable in whatever capacity.” See Matter of Taylor, 132 F.3d 256, 261 (5th Cir.1998) (“The responsible person penalty of § 6672 for withholding taxes falls within § 507(a)(8)(C).”); In re Thomas, 222 B.R. 742 (Bkrtcy.E.D.Pa.1998) (Trust fund taxes fall within ambit of § 507(a)(8)(C) and penalties relating to unpaid trust fund taxes are to be treated as the taxes they are related to.) Section 523(a)(1)(A) excepted from the chapter 7 discharge of the Debtor in his prior case the debt due the IRS based upon the assessment against the Debtor as the responsible officer for the failure to pay 941 federal employment tax obligations. The status of any possible claim for this debt in the Debt- or’s chapter 7 case is irrelevant for dischargeability purposes. “The plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will" }, { "docid": "22378945", "title": "", "text": "with its avowed purpose of furthering that basic goal of the Act, the Court is not entitled to make the presumption that it does. Rather, in the absence of a clear congressional expression to the contrary, there is every reason to believe that Congress did not intend to make nondischargeable in the employee’s bankruptcy proceedings a tax which is legally due and owing not by the bankrupt employee, but by the employer. “concertn] with the inequity of granting a taxpayer a discharge of his liability for payment of trust fund taxes which he has collected from his employees . . . .” (Emphasis supplied.) H. R. Rep. No. 372, 88th Cong., 1st Sess., 6 (1963). Finally, the Court emphasizes the fact that corporations often dissolve upon bankruptcy, thus making all corporate debts dischargeable in fact if not in form. Ante, at 278. Thus, reasons the Court, it is “most unlikely that the legislature intended § 17a (1) (e) to apply only to the corporation’s liability for unpaid withholding taxes.” Ibid. But clearly Congress, had it really intended to alleviate the problem to which the Court refers, could and hopefully would have used language more suited to the purpose. It is also incongruous to impute the intent to Congress to make this particular liability non-dischargeable as to the employee because the corporation will dissolve upon bankruptcy and yet to make no other corporate liability nondischargeable as to the employee even though dissolution of the corporation is just as likely in those cases. Such a statutory scheme not only seems at odds with the basic notion of what a corporation is all about, i. e., limited liability, but it also imposes a potentially crushing liability on corporate officials — a liability that is nondischargeable in its entirety and virtually in perpetuity. I certainly would not impute such an intent to Congress without a much clearer statutory directive. While the lifelong liability which the Court imposes today falls on the shoulders of one who was the chief executive officer of a small family business, there is unfortunately nothing in the Court's reasoning which" }, { "docid": "15628348", "title": "", "text": "U.S.C. § 6901(a) required the debt to be treated like a tax for the purposes of exception from bankruptcy discharge. Id. Thus, it reversed the bankruptcy court, concluding McKowen’s liability was not discharged in the 1995 bankruptcy proceeding. McKowen now appeals the district court’s order. DISCUSSION Dischargeability of Transferee Liability in Bankruptcy “ ‘In reviewing the decision of a bankruptcy court pursuant to 28 U.S.C. § 158(a) and (d), the district court and the court of appeals apply the same standards of review that govern appellate review in other cases.’ ” In re Country World Casinos, Inc., 181 F.3d 1146, 1149 (10th Cir.1999) (quoting In re Hedged-Investments Assocs., Inc., 84 F.3d 1267, 1268 (10th Cir.1996)). On an appeal of a bankruptcy case, we review the legal conclusions of the bankruptcy court and the district court de novo. In re Wise, 346 F.3d 1239, 1241 (10th Cir.2003); In re Craddock, 149 F.3d 1249, 1257 (10th Cir.1998). Here, we face an issue of first impression: whether a debt arising from transferee liability for unpaid income tax owed by the transferor corporation is discharged by the transferee’s bankruptcy. Our analysis necessarily construes the interrelationship between specific provisions of the Bankruptcy Code and the Internal Revenue Code (I.R.C.). The Bankruptcy Code identifies the purpose of a voluntary bankruptcy discharge as the opportunity to obtain relief from existing debts. See 11 U.S.C. § 524. Though a fresh start for the debtor is the desired outcome, Congress determined that some debts should survive despite this general policy; it explicitly removed certain types of debt from discharge. At issue here is the exception from discharge for a tax that is on or measured by income or gross receipts, which is assessable after commencement of the bankruptcy case. See 11 U.S.C. § 523(a)(1)(A); 11 U.S.C. § 507(a)(8)(A); 11 ■ U.S.C. § 507(a)(8)(A)(iii). Under Bankruptcy Code 11 U.S.C. § 523(a)(1)(A), a debtor will not be discharged from any debt “for a tax” of the kind stated in § 507(a)(8). In turn, § 507(a)(8) specifically identifies a tax on income as exempt from discharge. 11 U.S.C. § 523(a)(1)(A); 11 U.S.C." }, { "docid": "22963336", "title": "", "text": "the Slodov opinion was predicated do not obtain in this case. Davis claims that, once he learned that ITAC was not paying employees’ withholding taxes, he assumed a more active role in supervising corporate disbursements. He contends that the factors animating the Slodov decision with respect to new management apply with equal force to the shuffle of duties that took place at ITAC. In other words, Davis would have this court equate transfers of responsibility internal to the corporation with the accession of new management that occurred in Slodov. The Supreme Court’s analysis, however, will not support such a conclusion. In Slodov, the Supreme Court expressly counselled against interpreting section 6672 in such a manner that “the penalties easily could be evaded by changes in officials’ responsibilities prior to the expiration of any quarter.” 436 U.S. at 247, 98 S.Ct. at 1785. Davis’s theory would encourage corporate roulette. Responsible officers, upon learning that taxes had gone unpaid during their watch, could simply rotate their respective responsibilities and duties. Once the officers assumed their new duties, they would be relieved from section 6672 personal liability for the use of forthcoming revenues to pay debts other than the back taxes. The corporation could thus delay compensating the federal treasury for the use of its money indefinitely, thereby freeing up corporate income for more self-interested expenses. Slodov’s concern for encouraging new management to salvage failing businesses, thus maximizing the chances for tax recovery, also loses much of its luster in this context. Persons “contemplating assuming control of a financially beleaguered corporation owing back employment taxes,” Id. at 252-53, 98 S.Ct. at 1787-88, might be deterred by the risk of personal liability. While Davis suggests that he and other responsible officers, just like potential purchasers, have the option of just walking away when they learn of an accrued withholding tax liability, in reality the choice for existing management is not that simple. Existing management has a vested interest, financial and otherwise, in guiding a business through troubled waters. Legal obligations and duties limit an officer’s ability to walk away upon learning of an overdue" }, { "docid": "22378919", "title": "", "text": "under § 17a (l)(e). The Court of Appeals did not consider this history, but instead relied on more general policy factors. The court observed that an “inequit[y]” could arise from holding an individual “liable for a tax owed by a corporation” in cases where, because “[t]he corporate liability . . . vastly exceed [s] the individual’s present or future resources,” his “entire future earnings could be confiscated to compensate for the corporate liability.” Such a result, in the court’s view, “would contravene the Bankruptcy Act’s basic policy of settling a bankrupt’s past debts and providing a fresh economic start.” 551 F. 2d, at 1092-1093. However persuasive these considerations might be in a legislative forum, we as judges cannot override the specific policy judgments made by Congress in enacting the statutory provisions with which we are here concerned. The decision to hold an individual “liable for a tax owed by a corporation,” even if there is a wide disparity between the corporation’s liability and the individual’s resources, was made when Internal Revenue Code § 6672 was passed, since it is that section which imposes the liability without regard for the individual’s ability to pay. And while it is true that a finding of nondischargeability prevents a bankrupt from getting an entirely “fresh start,” this observation provides little assistance in construing a section expressly designed to make some debts nondischargeable. We are not here concerned with the entire Act’s policy, but rather with what Congress intended in § 17a (1) and its subdivision (e). The statutory language and legislative history discussed in Parts II and III, supra, demonstrate an intention to make a liability like respondent’s nondischargeable. The Court of Appeals’ approach, moreover, would have the effect of allowing a corporation and its officers to- escape all liability for unpaid withholding taxes, see supra, at 278-279, while leaving liable for such taxes after bankruptcy those individuals who do business in the sole proprietorship or partnership, rather than the corporate, form. In passing § 17a (1), however, Congress was expressly concerned about the fact that the operation of prior law was “unfairly discriminatory" }, { "docid": "8401797", "title": "", "text": "claim for any fuel excise tax liabilities. The plan of reorganization, confirmed in August 1992, provided, inter alia, for payment of the employment taxes, but did not make any provision for payment of the excise taxes. In 1990, however, the IRS had begun a criminal investigation' regarding those (the corporations’) unpaid excise taxes. And, approximately a year after plan-confirmation, Marilyn Grothues pleaded guilty to one count of a multi-count indictment for evading payment of excise taxes, in violation of 26 U.S.C. § 7201 (“willfully attempt! ] in any manner to evade or deféat” payment of tax). In her plea agreement, she agreed to pay all taxes, penalties, and interest owed by the corporations, stipulating, for sentencing purposes only, that the tax loss was approximately $716,000. (The Government claimed the corporations owed over $4 million.) Accordingly, in November 1993, the district court ordered, as a condition of sentence, that Ms. Grothues “pay all taxes; penalties and interest due and owed”. Ms. Grothues failed to do so. In March 1996, in an effort to collect the amount due, the IRS filed notices of tax liens against the Grothues’ property, identifying the Grothues as the corporations’ alter egos or nominees. It then issued notices of intent to levy on some of the Grothues’ real property. To stop the sale of their property, the Grothues filed this adversary action in bankruptcy court, maintaining that, pursuant to 11 U.S.C. § 1141(d)(1) (general discharge of pre-confirmation debts upon plan-confirmation), any personal liability they might have had for the excise taxes had been discharged in 1992, when their Chapter 11 plan was confirmed. They also challenged the legality and amount of taxes owed. The IRS moved for summary judgment, asserting that, pursuant to 11 U.S.C.. § 1141(d)(2) (debts listed in 11 U.S.C. § 523 non-dischargeable as to individual debtors), the taxes-owed were excepted from discharge. It relied upon subparts (A) and (C) of § 523(a)(1). ■ The former is for taxes specified in 11 U.S.C. § 507(a)(8), including excise taxes; the latter, for taxes a “debtor ... willfully attempted in any manner to evade or defeat”. In" }, { "docid": "4504169", "title": "", "text": "taxes. Section 523(a)(1)(A) of the Bankruptcy Code excepts from discharge, certain types of taxes: A discharge under section 727 ... of this title does not discharge an individual debtor from any debt — (1) for a tax or a customs duty— (A) of the kind and for the periods specified in section ... 507(a)(8) of this title, whether or not a claim for such tax was filed or allowed; Sales taxes arguably fall under at least two categories of taxes described in § 507(a)(8): (1) “trust fund” taxes; or (2) excise taxes. There is no “age” limit on trust fund taxes while excise taxes are dischargeable if the return was last due after three years before the case was filed. Trust fund taxes are never discharged, regardless of their age. Excise taxes, on the other hand, are dischargeable if more than three years old. The overwhelming weight of authority holds that sales taxes are trust fund taxes covered by § 507(a)(8)(C), not § 507(a)(8)(E). When § 523(a)(1)(A) and § 507(a)(8)(C) are read together then, a debtor’s liability for unpaid sales taxes is excepted from the debtor’s discharge. Here, debtor’s sales tax liability was excepted from debtor’s discharge under § 727(b) and debtor remained liable for the 1993 sales taxes after his 1995 discharge. This leaves the question of whether it matters that USFG, and not the State of Kansas, is the creditor asserting the claim in this case. Under the retailers’ sales tax bond, USFG, as surety, was subrogated to the State of Kansas with respect to sales taxes it paid on behalf of the principal under the bond. The issue becomes whether a creditor can be subrogated to the taxing authority’s right to assert nondischargeability of the tax debt. On this issue, there appears to be a split in authority. In Western Surety Company v. Waite (In re Waite), the Eleventh Circuit Court of Appeals held that a surety that had paid the debtor’s liquor sales tax liability to the State of Tennessee was subrogated to the right of the taxing entity to prevent discharge of the tax debt," }, { "docid": "17699310", "title": "", "text": "an employment tax on a wage, salary, or commission of a kind specified in paragraph (3) of this subsection earned from the debtor before the date of the filing of the petition, whether or not actually paid before such date, for which a return is last due, under applicable law or under any extension, after three years before the date of the filing of the petition. 11 U.S.C. § 507(a)(8)(C), (D). The debtor argues that unemployment insurance contributions are not taxes required to be collected or withheld. See In re Ndosi, 116 B.R. 687, 689 (Bankr.D.Minn.1990). Although admitting that he was responsible for the unemployment insurance contributions, the debtor was not required to collect or withhold these specific taxes from the corporation’s employees, and no “trust fund” was created. Furthermore, he argues that the unemployment insurance contributions were not employment taxes earned from him, the debtor, but from Mueller Property Services. Therefore, neither § 507(a)(8)(C) or (D) applies. The debtor relies on Ndosi v. Minnesota, 950 F.2d 1376 (8th Cir.1991). In a more recent case, the Bankruptcy Appellate Panel of the Eighth Circuit held that unpaid workers’ compensation premiums are entitled to priority as excise taxes under § 507(a)(8)(E) of the Bankruptcy Code, and are therefore not dischargeable under § 523(a)(1)(A). See In re Voightman, 239 B.R. 380 (8th Cir.BAP 1999). Section § 507(a)(8)(E) provides priority for: An excise tax on (i) a transaction occurring before the date of the filing of the petition for which a return, if required, is last due, under applicable law or under any extension, after three years before the date of the filing of the petition; or (ii) if a return is not required, a transaction occurring during the three years immediately preceding the date of the filing of the petition.... 11 U.S.C. § 507(a)(8)(E). In Voightman, the debtor operated a trucking business as a sole proprietor. At the time of his bankruptcy, he had not paid $15,130.04 in premiums to the North Dakota Workers Compensation Bureau. Id. The court reasoned that: An excise tax is an indirect tax, one not directly imposed upon" }, { "docid": "22378944", "title": "", "text": "the concept of “taxes” in § 17a (1) to include the 100% penalty imposed by § 6672 or to encompass a corporate official’s responsibility (presumably under the corporate charter and state law) to collect and pay over federal withholding taxes. The Court emphasizes the phrase “and other persons” in the letter and then observes that “[t]here is no reason to believe that Congress did not intend to meet Treasury’s concerns in their entirety.” Ante, at 277. But emphasizing that phrase to the exclusion of the rest of the letter and the language and” structure of the statute places a weight upon that phrase which it cannot bear. Indeed, one could reach a much different conclusion by simply emphasizing other parts of the letter, such as the Department’s And even the Court recognizes that “the Department may not have focused on the specific question presented here . . . Ante, at 277. But most importantly, when interpreting the Bankruptcy Act in general, with its fundamental goal of rehabilitating bankrupts, and when interpreting this provision in particular, with its avowed purpose of furthering that basic goal of the Act, the Court is not entitled to make the presumption that it does. Rather, in the absence of a clear congressional expression to the contrary, there is every reason to believe that Congress did not intend to make nondischargeable in the employee’s bankruptcy proceedings a tax which is legally due and owing not by the bankrupt employee, but by the employer. “concertn] with the inequity of granting a taxpayer a discharge of his liability for payment of trust fund taxes which he has collected from his employees . . . .” (Emphasis supplied.) H. R. Rep. No. 372, 88th Cong., 1st Sess., 6 (1963). Finally, the Court emphasizes the fact that corporations often dissolve upon bankruptcy, thus making all corporate debts dischargeable in fact if not in form. Ante, at 278. Thus, reasons the Court, it is “most unlikely that the legislature intended § 17a (1) (e) to apply only to the corporation’s liability for unpaid withholding taxes.” Ibid. But clearly Congress, had it" }, { "docid": "6930130", "title": "", "text": "the Bankruptcy Code as a tax evasion device. Congress was well aware of the potential for tax evasion when it debated the Bankruptcy Reform Act of 1978: In business cases ... it is a frequent occurrence that the business will stop paying its taxes before it stops paying its other creditors, because the officers of the business know that detection of nonpayment is more difficult for the taxing authority than it is for a supplier or lender, and that an unpaid supplier quickly stops shipping goods, though an unpaid taxing authority is usually unable to take collection action for months. H.R.Rep. No. 595, 95th Cong., 1st Sess. 193 (1977), reprinted in 1978 U.S.C.C.A.N., 5787, 6153-54. However, the provision Congress drafted to prevent this form of tax evasion was not section 523(a)(1)(C) but sections 523(a)(1)(A) and 507(a)(8). See. H.R.Rep. No. 595 at 190 & nn. 97, 98, 1978 U.S.C.C.A.N., at 6151 nn. 97, 98. Explaining the policy behind these provisions, Congress noted that [b]ecause it takes a taxing authority time to locate and pursue delinquent tax debtors, taxes are made nondischargeable if they become legally due and owing within three years before bankruptcy. An open-ended dischargeability policy would provide an opportunity for tax evasion through bankruptcy, by permitting discharge of tax debts before a taxing authority has an opportunity to collect any taxes due. Id. at 190, 1978 U.S.C.C.A.N., at 6150 (footnote omitted) (emphasis added). Congress enacted section 523(a)(1)(A) and section 507(a)(8) to give taxing authorities time to pursue delinquent income tax debtors and to obtain secured status before the debtor can discharge his tax liability in bankruptcy. See id. Congress did not intend to grant the IRS an absolute priority in bankruptcy for delinquent taxes, however. Instead, sections 507(a)(8) and 523(a)(1)(A) except from discharge income and employment tax liabilities only for those taxable years ending within three years of the filing of a debtor’s bankruptcy petition. See §§ 507(a)(8), 523(a)(1)(A). Congress imposed this three-year limit on the nondischargeability of income and employment taxes “because the taxing authority should not be given priority for taxes that are unassessed or uncollected through" }, { "docid": "8401810", "title": "", "text": "focuses on Ms. Grothues’ willful conduct in the second quarter of 1988, she stipulated her conduct caused a loss of approximately $716,000, well above the $80,000 associated with her one-tax-period conviction and obviously encompassing other tax periods (other taxes). And, in her plea agreement, she promised to pay all of the corporations’ unpaid excise taxes, an integral provision made a condition of her sentence. In the light of these unique circumstances, we hold that, as to Ms. Grothues, these other taxes are also non-discharge able. As a general matter, holding otherwise might — indeed, probably would — encourage unscrupulous debtors to use bankruptcy law as a shield against enforcement of criminal proceedings promises they had no intention of keeping, but nevertheless made, in order to gain a more favorable plea agreement/sentence. c. In addition to pointing to the IRS’ not submitting summary judgment evidence supporting its alter ego theory, the Gro-thues assert Ms. Grothues was ordered only to pay taxes “due and owing” to the IRS, and maintain there has been no determination she owed any taxes due. The Grothues’ liability for the taxes— and, concomitantly, the validity of the IRS’ alter ego theory — are not before us. As noted, the Grothues did not appeal the district court’s affirming the bankruptcy court’s no-jurisdiction-holding as to the legality and amount of taxes owed. These issues are for the earlier-referenced foreclosure proceeding. 2. Finally, all parties agree Ms. Grothues’ plea agreement and guilty-plea conviction do not support § 523(a)(1)(C) non-dis-chargeability of Mr. Grothues’ tax debt (if any). Nevertheless, the IRS urges holding its tax claim non-dischargeable for him as well, pursuant to the discharge exception for certain excise taxes under 11 U.S.C. §§ 523(a)(1)(A) and 507(a)(8). As discussed supra, the former is a discharge-exception for taxes specified in the latter. Under § 507(a)(8), excise taxes are a priority claim if they concern a “transaction occurring before the date of the filing of the petition for which a return, if required, is last due, under applicable law or under any extension, after three years before the date of the filing of the" }, { "docid": "22378918", "title": "", "text": "the fact that a corporation \"normally ceases to exist upon bankruptcy,” H. R. Rep. No. 372, p. 2; see S. Rep. No. 114, p. 2, thereby rendering “uncollectable” the corporation’s tax liabilities, 112 Cong. Rec. 13818 (1966) (statement of Sen. Ervin). As one of the bill’s principal sponsors observed, corporate dissolution has “the practical effect of discharging all debts including taxes,” regardless of statutory declarations of nondischargeability. Id., at 13821 (remarks of Sen. Hruska). In view of this congressional assumption, the interpretation of § 17a (1)(e) adopted by the Court of Appeals is untenable, for the combination of corporate dissolution with the personal bankruptcies of those found liable under Internal Revenue Code § 6672 would leave no person within the corporation obligated to the Government for unpaid withholding taxes. Such a result would be directly inconsistent with Congress’ declarations that the amendment which became § 17a(1)(e) met the Treasury Department’s concern about ensuring post-bankruptcy liability for these taxes. IV In light of this legislative history, little doubt remains as to the nondischargeability of respondent’s liability under § 17a (l)(e). The Court of Appeals did not consider this history, but instead relied on more general policy factors. The court observed that an “inequit[y]” could arise from holding an individual “liable for a tax owed by a corporation” in cases where, because “[t]he corporate liability . . . vastly exceed [s] the individual’s present or future resources,” his “entire future earnings could be confiscated to compensate for the corporate liability.” Such a result, in the court’s view, “would contravene the Bankruptcy Act’s basic policy of settling a bankrupt’s past debts and providing a fresh economic start.” 551 F. 2d, at 1092-1093. However persuasive these considerations might be in a legislative forum, we as judges cannot override the specific policy judgments made by Congress in enacting the statutory provisions with which we are here concerned. The decision to hold an individual “liable for a tax owed by a corporation,” even if there is a wide disparity between the corporation’s liability and the individual’s resources, was made when Internal Revenue Code § 6672 was" }, { "docid": "4504168", "title": "", "text": "debt exception found in § 523(a)(3). However, the Court considers the discharge exception regarding tax debts pertinent. The language of § 727(b) prescribing the scope of a discharge does not on its face indicate that any of the statutory discharge exceptions in § 523(a) take precedence over each other. In other words, the fact that the unscheduled debt exception in § 523(a)(3) is inapplicable does not foreclose the Court from considering alternative discharge exceptions, including tax debts under § 523(a)(1). USFG’s judgment is a debt arising from the debtor’s liability for the car dealership’s unpaid sales taxes. The Kansas Retailers’ Sales Tax Act (“Act”) is found at Kan. Stat. Ann. § 79-3601 et seq. Under the Act, the retailer is required to collect the sales tax from the consumer and remit to the director of taxation. Personal liability for sales taxes is imposed upon individuals responsible for collecting and paying the sales tax regardless of the individual’s relationship with the retailer. The debtor is a “responsible individual” subject to personal liability for the unpaid sales taxes. Section 523(a)(1)(A) of the Bankruptcy Code excepts from discharge, certain types of taxes: A discharge under section 727 ... of this title does not discharge an individual debtor from any debt — (1) for a tax or a customs duty— (A) of the kind and for the periods specified in section ... 507(a)(8) of this title, whether or not a claim for such tax was filed or allowed; Sales taxes arguably fall under at least two categories of taxes described in § 507(a)(8): (1) “trust fund” taxes; or (2) excise taxes. There is no “age” limit on trust fund taxes while excise taxes are dischargeable if the return was last due after three years before the case was filed. Trust fund taxes are never discharged, regardless of their age. Excise taxes, on the other hand, are dischargeable if more than three years old. The overwhelming weight of authority holds that sales taxes are trust fund taxes covered by § 507(a)(8)(C), not § 507(a)(8)(E). When § 523(a)(1)(A) and § 507(a)(8)(C) are read together then, a" }, { "docid": "17699313", "title": "", "text": "of upholding the prosperity of the state by ensuring the well-being of workers through sure and certain relief to those injured on the job,” and concluded that debtor’s debt for the unpaid workers’ compensation premiums was nondischargeable. Id. at 383. Although Voightman involved unpaid workers’ compensation premiums and our case involves unpaid unemployment insurance premiums, the analysis should be the same. First, this obligation, if a tax, is an excise tax because the obligation was an indirect assessment on the debtor that arose through the act of employing individuals. Second, it meets the four elements of the Lorber test to be classified as a tax. The obligation is an involuntary pecuniary burden imposed by the State of Wisconsin on employers under Chapter 108 of the Wisconsin Code for the public purpose of creating a “gradual and constructive solution of the unemployment problem.” See Wis.Stat. § 108.01(3) (1997-1998). Therefore, the claim for unpaid unemployment premiums is granted priority under § 507(a)(8)(E) of the Bankruptcy Code, and the debt giving rise to the claim is nondischargeable under § 523(a)(1)(A). Alternatively, WDWD benefits from § 523(a)(l)(B)(ii) which provides: A discharge under section 727 ... of this title does not discharge an individual debtor from any debt for a tax or a customs duty ... with respect to which a return, if required ... was filed after the date on which such return was last due, under applicable law or under any extension, and after two years before the date of the filing of the petition.... 11 U.S.C. § 523(a)(1)(B)(ii). The parties have stipulated that Mueller Property Services, for which the debtor was a responsible party, did not pay its unemployment insurance taxes for the third and fourth calendar quarters of 1996 and the first and second calendar quarters of 1997. The tax reports for all of those quarters, excluding the fourth calendar quarter of 1996, were filed late and within the two-year period preceding debtor’s bankruptcy filing. The only disputed issues are whether the unemployment insurance contributions are a “tax” for purposes of § 523(a)(1)(B) , and whether § 523(a)(l)(B)(ii) applies to the" }, { "docid": "17699318", "title": "", "text": "of 2 or more of them, and such ownership interest of a parent corporation or limited liability company of which the corporation or limited liability company unable to pay such amounts is a wholly owned subsidiary. The personal liability of such officer, employe, member or manager as provided in this subsection survives dissolution, reorganization, bankruptcy, receivership, assignment for the benefit of creditors, judicially confirmed extension or composition, or any analogous situation of the corporation or limited liability company and shall be set forth in a determination or decision issue under § 108.10. Wis.Stat. § 108.22(9) (1997-1998). The debtor concedes that he meets the conditions for being held personally liable under Wisconsin unemployment insurance law for the unpaid unemployment insurance taxes of Mueller Property Services. Pursuant to Wis.Stat. § 108.10, WDWD issued an appealable determination to the debtor that he was personally liable for the unemployment insurance taxes, and the debtor did not appeal this determination. Therefore, the debtor is personally liable to WDWD. The plain language of § 523(a)(l)(B)(ii) excepts from discharge any debt of an individual debtor for a tax where a return was filed late and within the two-year period prior to bankruptcy. There is no language in § 523(a)(l)(B)(ii) that requires that the debt must have originally accrued to the debtor. Rather, the debtor need only be hable for the debt. The only other requirement found in the statute is that the tax returns must have been filed late and within the two-year period prior to bankruptcy. Tax reports for Mueller Property Services were filed late and within two years prior to bankruptcy. Therefore, debtor’s debt for unpaid unemployment insurance contributions is not dischargeable under § 523(a)(l)(B)(ii). . We have shown unemployment insurance contributions to be taxes under § 523(a)(1)(A). . Cf. Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992)." }, { "docid": "12230453", "title": "", "text": "when debts are not discharged in bankruptcy, creditors can seek to collect from debtors personally after termination of bankruptcy proceedings, see 11 U.S.C. §§ 524, 727 (1994). Second, administrative expenses receive first priority, paid even before claims of creditors. §§ 507(a)(1), 726(a)(1). Accordingly, because the McGuirls’ debt has not been discharged, any portion of the estate not used to pay administrative expenses could be used by the McGuirls to pay a creditor who attempts to recover from them personally at the close of bankruptcy. This means that if the McGuirls are successful in their effort to reduce the administrative expenses they will have reduced them liability on their non-diseharged debts. According to the McGuirls, this gives them a sufficient interest in the estate to warrant standing. The trustee disagrees, arguing that despite the non-dischargeability of the McGuirls’ debt, their interest in reducing the administrative expense award is too remote to confer standing. The trustee relies on SEC v. Securities Northwest, Inc., 573 F.2d 622 (9th Cir.1978), where the Ninth Circuit held that a former shareholder and officer of the debtor corporation lacked standing to challenge a decision of the trustee that he claimed resulted in a personal assessment against him by the IRS for the corporation’s tax liability. The shareholder argued that he had standing because if the court had “accorded the claims of the IRS against the debtor for ... unpaid taxes a higher priority” than that actually approved, then “the government’s tax claims would have been satisfied out of the estate of the debtor corporation in the liquidation proceeding, thus relieving [him] of any personal liability for the unpaid taxes.” Id. at 626. Rejecting this argument, the Ninth Circuit ruled that the shareholders’ interest in the priority of the claims, “although indirectly pecuniary, is remote and consequential rather than direct and immediate.” Id. The trustee argues that here, as in Securities Northwest, the McGuirls’ interest in maintaining as large an estate as possible for purposes of paying off debtors who might pursue them after the bankruptcy proceeding is “remote and consequential.” We do not agree that the McGuirls’" }, { "docid": "22378917", "title": "", "text": "its objection to the discharge of “persons . . . charged with the responsibility of paying over . . . moneys collected from third persons.” Letter from Assistant Secretary Surrey to Chairman of Senate Judiciary Committee, supra. Respondent without question is such a person, a point essentially conceded here by virtue of the recognition of respondent’s liability under Internal Revenue Code § 6672, see supra, at 274-275, and n. 9. Because Congress specifically contemplated that those with withholding-tax-payment obligations would remain liable after bankruptcy for their “conver[sion]” of the tax funds to private use, S. Rep. No. 114, p. 10, we must conclude that the liability here involved is not dischargeable in bankruptcy. Even without these indications of an intent to make nondischargeable the withholding tax obligations of persons in respondent’s situation, moreover, Congress’ perception of the consequences of corporate bankruptcy makes it most unlikely that the legislature intended § 17a (1)(e) to apply only to the corporation’s liability for unpaid withholding taxes. Both the Committee reports and the floor debates contain repeated references to the fact that a corporation \"normally ceases to exist upon bankruptcy,” H. R. Rep. No. 372, p. 2; see S. Rep. No. 114, p. 2, thereby rendering “uncollectable” the corporation’s tax liabilities, 112 Cong. Rec. 13818 (1966) (statement of Sen. Ervin). As one of the bill’s principal sponsors observed, corporate dissolution has “the practical effect of discharging all debts including taxes,” regardless of statutory declarations of nondischargeability. Id., at 13821 (remarks of Sen. Hruska). In view of this congressional assumption, the interpretation of § 17a (1)(e) adopted by the Court of Appeals is untenable, for the combination of corporate dissolution with the personal bankruptcies of those found liable under Internal Revenue Code § 6672 would leave no person within the corporation obligated to the Government for unpaid withholding taxes. Such a result would be directly inconsistent with Congress’ declarations that the amendment which became § 17a(1)(e) met the Treasury Department’s concern about ensuring post-bankruptcy liability for these taxes. IV In light of this legislative history, little doubt remains as to the nondischargeability of respondent’s liability" } ]

[ { "docid": "22679365", "title": "", "text": "justify the exercise of federal court jurisdiction . . .” to grant injunctive relief. 261 F. Supp., at 991. Since the majority found no “special circumstances” justifying that relief, the majority concluded that it was also required to abstain from considering the request for declaratory relief. This conclusion was error. Dombrowski teaches that the questions of abstention and of injunctive relief are not the same. The question of the propriety of the action of the District Court in abstaining was discussed as an independent issue governed by different considerations. We squarely held that “the abstention doctrine is inappropriate for cases such as the present one where . . . statutes are justifiably attacked on their face as abridging free expression . . . .” 380 U. S., at 489-490. This view was reaffirmed in Keyishian v. Board of Regents, 385 U. S. 589, 601, n. 9, when a statute was attacked as unconstitutional on its face and we said, citing Dombrowski and Baggett v. Bullitt, supra, “[t]his is not a case where abstention pending state court interpretation would be appropriate . . . .” It follows that the District Court’s views on the question of injunctive relief are irrelevant to the question of abstention here. For a request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute. We hold that a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction. Douglas v. City of Jeannette, supra, is not contrary. That case involved only the request for injunctive relief. The Court re fused to enjoin prosecution under an ordinance declared unconstitutional the same day in Murdock v. Pennsylvania, 319 U. S. 105. Comity between the federal and Pennsylvania courts was deemed sufficient reason to justify the holding that “in view of the decision rendered today in Murdock ... we find no ground for supposing that the intervention of a" } ]

[ { "docid": "4541233", "title": "", "text": "OPINION OF THE COURT ALDISERT, Circuit Judge. On April 28, 1969, a Swedish motion picture titled “I Am Curious (Yellow)” opened for showing in the City of Philadelphia. That same day, the city solicitor filed an action in equity in the Court of Common Pleas of Philadelphia County seeking to enjoin exhibition of the film on the grounds that it was obscene and a public nuisance. In this ex parte proceeding, a Rule to Show Cause why a preliminary injunction should not issue was returned against the theatre, the 19th and Chestnut Street Corporation, and the individual defendants, its owners. In its complaint for injunctive relief the City made the following averments: “Paragraph 9: The City has been informed, believes and therefore avers that the dominating theme of the said moving picture film is designed to appeal to a prurient interest in sex; is patently offensive in that it affronts the contemporary community standards relating to the description or representation of sexual matters; and is a graphic portrayal of sexual intercourse between a male and female under varying circumstances including scenes of oral-genital activity. “Paragraph 10: Plaintiff avers that the said film is obscene and pornographic * * * “Paragraph 12: Plaintiff has been informed, believes and therefore avers that the said film is wholly devoid of any artistic values and is without any redeeming social or entertaining value but is displayed solely for a financial profit to be made at the expense of the public welfare and public morals of the community. “Paragraph 13: Plaintiff further avers that the continued display of said moving picture film constitutes a public nuisance as well as a display of public obscenity and pornography.” The City’s complaint was thus a blend of common law concepts of public nuisance and certain language found in Pennsylvania’s criminal obscenity statute. This duality was manifested in a colloquy between the court and counsel for the City: “THE COURT: In other words, you are asserting a right to ban further showing of the film judicially on the ground that it was a nuisance? MR. IVINS: That is right," }, { "docid": "4541237", "title": "", "text": "Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), the court also viewed the Pennsylvania procedures in equity as “an additional threat to the freedom of expression,” because they failed to guarantee prompt final judicial determination of the First Amendment issue which was the subject of preliminary restraint. In granting the injunction the court was careful to point out that it was not finding the film constitutionally protected, but only that the City could not attempt to prohibit its exhibition under the theory of a common law nuisance. The court made a specific finding that its action was “not based on a conclusion that the City proceeded against the film in bad faith.” Indeed, the court concluded that the question of the film’s nonobscenity was not so clear that the mere institution of a proceeding to enjoin it under a properly drawn obscenity statute would be violative of federal constitutional rights. 300 F.Supp. 281, 287. I. Preliminarily, it is important to note what is not before us in this appeal. Although the court below did issue the injunction requested' by Grove, it refused the prayer for declaratory judgment on the issue of the film’s obscenity. There was no appeal taken from this denial. Accordingly, declaratory judgment considerations are not before us. Additionally, because the film is no longer being shown by the defendant-exhibitors at the 19th & Chestnut Street Theatre, the appeal in the remand case has been dismissed on the ground of mootness. This latter disposition does not affect the present appeal since public advertisements reveal that the film is now being shown in four locations in rerun movie houses in the City of Philadelphia. We therefore move to consider whether the district court acted correctly in enjoining Philadelphia from further interference with the showing of the film. In so doing, a threshold question of fundamental importance must command our attention : When m!ay a federal court intervene in proceedings beforp a state forum? Because the power and jurisdiction of the lower federal courts are subject to Congressional supervision, we begin with an analysis of" }, { "docid": "21936168", "title": "", "text": "if plaintiffs exhibit their film under the protection of our injunction, and it is ultimately determined that our view was mistaken and that such exhibition was properly considered illicit. Because of the importance of the matter, the injunction will not issue for one week, to permit plaintiffs to add other parties, if so advised, and to give the defendant the opportunity to apply to the Circuit Justice for a stay. . Grove Press, Inc.’s motion to intervene was originally denied, counsel being permitted, instead, to appear as an amicus. In view of this opinion, Grove Press may be allowed to renew its motion at an early date. . “ § 28A. Importing, printing, distributing or possessing obscene tilings Whoever imports, prints, publishes, sells or distributes a pamphlet, ballad, printed paper, phonographic record, or other thing which is obscene, indecent or impure, or an obscene, indecent or impure print, picture, figure, image or description, or buys, procures, receives or has in his possession any such pamphlet, ballad, printed paper, phonographic record, obscene, indecent or impure print, picture, figure, image or other thing, for the purpose of sale, exhibition, loan or circulation, shall be punished . Another court, viewing this same film, has differed. United States v. A Motion Picture Film Entitled “I Am Curious—Yellow,” 2 Cir., 1968, 404 F.2d 196. . The Superior Court’s extensive analysis in Karalexis of a decade of the Supreme Court’s views, reaching the conclusion that there is no majority agreement on any one approach to obscenity, apart from the fact that it disregards such an agreement in Stanley, overlooks the fact that if only four, or even three, justices agree on one method by which immunity is reached, this agreement is as significant as if five joined, so long as there are enough other justices who can be counted on to concur in the result. If we may be pardoned the analogy, if deuces are wild, an inside straight flush and a deuce takes the pot. See Redrup v. New York, 1967, 386 U.S. 767, 770-771. 87 S.Ct. 1414, 18 L.Ed.2d 515. . Not the Fourth" }, { "docid": "294024", "title": "", "text": "of the legislature have been occupied with consideration of federal court decisions. Burford, supra, 319 U.S. at 329, 63 S.Ct. at 1105. No such disruption is likely to occur in this case. Therefore, the Court will not abstain under Burford. The third major category of abstention was set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In that case the Supreme Court held that a district court cannot enjoin a pending state criminal proceeding. Id. at 41, 91 S.Ct. at 749. It was also indicated that a declaratory judgment under the circumstances would be improper. Id. at 41 n.2, 91 S.Ct. at 749. In Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975), Younger was extended to a civil proceeding “which in important respects is more akin to a criminal prosecution than are most civil cases.” In Huffman, the litigation in question was a nuisance action against exhibition of obscene films. In its preliminary injunction memorandum, Health argued that its enforcement proceedings were “akin to criminal prosecution,” though it cited no cases to support its view. Were the Court to accept this view, most state regulatory schemes would be classified as protected under Younger. The Court finds that Younger abstention is not appropriate in this case. Finally, Health has suggested that the complaint should be dismissed for reasons of “wise judicial administration,” as was done in Colorado River, supra, 424 U.S. at 813,96 S.Ct. at 1244. That case is clearly distinguishable, however, because the Supreme Court found that “the clear federal policy evinced by [the McCarran Amendment] is the avoidance of piecemeal adjudication of water rights in a river system.” Id. at 819, 96 S.Ct. at 1247. Therefore, it was appropriate to leave the matter to the state. There is no similar federal policy involved here. Accordingly, the Court will not dismiss the complaint under this theory. VII. PENDANT JURISDICTION OVER STATE CLAIMS The defendants have argued that if the federal claims are dismissed, the Court should not exercise jurisdiction over the state claims. Because one" }, { "docid": "873419", "title": "", "text": "abstaining. Plaintiffs contend that this case is inappropriate for abstention because of the inhibiting effect the delay of state court proceedings will have on the very constitutional rights which they seek to protect. Plaintiffs submit that defendants’ refusal to license these machines is an unconstitutional prior restraint and, as such, is condemned by those cases which hold that a licensing body must either grant a license to show motion pictures or go to court to restrain the showing within a prompt, specified time period. See, e. g., Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed. 2d 649 (1965); Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968). On the basis of the record before this court, however, it is impossible to discern to what extent substantial First Amendment rights are involved. The record discloses only that the City of Kokomo denied plaintiffs a license to operate certain instruments. The only evidence below that would indicate in any way that an impermissible prior restraint was involved is found in the testimony of Chief of Police Sosbe, where he opines that considering the character of the book store, he would conclude that the film-strips shown on those devices would be obscene. The question before the district court, however, did not concern the licensing of the films themselves. Nor has either party contended that the City of Koko-mo could require licensing or restrain the exhibition of these films under the ordinance here in question. The licensing ordinance is not directed toward licensing films, but only prohibits operation of certain machines without a license. Assuming, however, that the regulatory licensing scheme was applied in a manner to incidentally affect constitutionally protected rights, we would nevertheless conclude that the district court properly abstained. Plaintiffs below sought both declaratory and injunctive relief. Although the injunction sought only an issuance of the license, such an injunction would be tantamount to enjoining the City’s threatened future prosecution. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669" }, { "docid": "22939244", "title": "", "text": "Per Curiam. This is an appeal from the order of a three-judge court granting a preliminary injunction against any civil or criminal proceedings in state courts against the appellees. Appellant Byrne is the district attorney of Suffolk County, Massachusetts. The appellees own and operate a motion picture theater in Boston. As a result of exhibiting the film entitled “I am Curious (Yellow)” at their theater, appellees were charged by District Attorney Byrne with violating Massachusetts General Laws, Chapter 272, § 28A, which prohibits the possession of obscene films for the purpose of exhibition. After the filing of the original state .indictments against them appellees brought the present action in federal court. They sought an injunction against both pending and future prosecutions under the Massachusetts obscenity law, and a declaration that the state obscenity law was unconstitutional on its face and as applied. The three-judge District Court held that appellees had a probability of success in having the statute declared unconstitutional, that abstention would be improper, and that appellees might suffer irreparable injury .if they were unable to show the film. The three-judge court, one judge dissenting, therefore granted a preliminary injunction, forbidding the initiation of any future prosecutions or the execution of the sentence imposed in the state proceedings then pending. 306 F. Supp. 1363 (1969). The district attorney appealed. We granted a stay of the district court order, 396 U. S. 976 (1969), and subsequently noted probable jurisdiction, 397 U. S. 985 (1970). In discussing the subject of irreparable injury, the court said: “We do not agree with defendant’s contention that there is no indication of irreparable injury. Even if money damages could be thought in some cases adequate compensation for delay, this defendant will presumably be immune. We agree with plaintiffs that the box office receipts, if there is a substantial delay, can be expected to be smaller. A moving picture may well be a diminishing asset. It has been said, also, that in assessing injury the chilling effect upon the freedom of expression of others is to be considered. See Dombrowski v. Pfister, 1965, 380 U. S." }, { "docid": "4541247", "title": "", "text": "turn on the validity of this change of position, we would not indulge in the dance. However, after carefully reviewing the matter, we have chosen to accept the City’s present position on appeal that the standard of obscenity set forth in the criminal statutes of the Commonwealth of Pennsylvania was per force incorporated into the City’s theory of public nuisance. We have done so because we find that the procedures employed by the City in the state courts to effect its censorship of the film come within the “chilling effect” exceptions to the general rule of Douglas. To reach this conclusion it is not necessary to depend upon a finding of bad faith by the City to bring this case within the Dombrowski exception. We hasten to add that although the district court specifically declared its holding “not based on a conclusion that the City proceeded * * * in bad faith,” 300 F.Supp. at 289, our own independent review of the record reveals the presence of factors sufficient to support a contrary conclusion. The City’s insistence upon pursuing one theory at trial and its subsequent shift of position before this court do not recommend it as a paragon of candor. It might be suggested that the City deliberately avoided at trial a confrontation on the constitutionality vel non of the Pennsylvania obscenity statute which would have required both a three-judge court and an inquiry into the obscenity issue itself. This, in turn, would have brought into question any precedental effect of the Second Circuit’s ruling in United States v. A Motion Picture Called I Am Curious — Yellow, supra. We do not deem it necessary, however, to bottom our decision on the issue of bad faith. Rather, we find a justification for federal intervention because the state court procedures chosen by the City — specifically the device of the preliminary injunction — collide with the First Amendment rights of protected expression and, in our view, bring into play the type of “chilling effect” exception discussed in Zwickler, It has been said that prior restraint upon speech suppresses the precise" }, { "docid": "873420", "title": "", "text": "way that an impermissible prior restraint was involved is found in the testimony of Chief of Police Sosbe, where he opines that considering the character of the book store, he would conclude that the film-strips shown on those devices would be obscene. The question before the district court, however, did not concern the licensing of the films themselves. Nor has either party contended that the City of Koko-mo could require licensing or restrain the exhibition of these films under the ordinance here in question. The licensing ordinance is not directed toward licensing films, but only prohibits operation of certain machines without a license. Assuming, however, that the regulatory licensing scheme was applied in a manner to incidentally affect constitutionally protected rights, we would nevertheless conclude that the district court properly abstained. Plaintiffs below sought both declaratory and injunctive relief. Although the injunction sought only an issuance of the license, such an injunction would be tantamount to enjoining the City’s threatened future prosecution. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), the Supreme Court held that apart from extraordinary circumstances, a federal court may not enjoin a pending state prosecution or declare invalid the statute under which the prosecution was brought. That question is not before this court since there is no pending state prosecution arising from the present action. Moreover, we need not consider the question specifically reserved in Younger, supra and Samuels, supra, concerning the propriety of federal injunctive or declaratory relief where there is no pending state prosecution, for this case presents proper grounds for abstention under the more traditional abstention principles first enunciated in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Even in those cases where the courts have refused to abstain because they find the policies exhorting federal-state comity not as pressing where there is no pending state prosecution, there is recognition of the Pullman-type abstention as a viable doctrine in appropriate cases. See, e. g.," }, { "docid": "21936178", "title": "", "text": "its constitutionality was not being litigated in the State court. In Dombrowski there was the added element of bad faith on the part of the State prosecutor, an element certainly not present here. The Court accordingly held that abstention was not appropriate. Since the Massachusetts statute is not being justifiably attacked on its face as abridging free expression and since the case in the Massachusetts Court has been tried and decided and is now on appeal, it seems to me especially appropriate for this Court to abstain from proceeding to a declaratory adjudication of the constitutionality of the statute until the Supreme Judicial Court shall have heard and decided the appeal. The parties anticipate that this will happen within the next three or four months. No injunction should issue against the defendant district attorney. He should be left free to prosecute these plaintiffs should they resume the exhibition of the film while their conviction in the Superior Court remains outstanding and their appeals pending. The plaintiffs have failed to show the existence of the requisite grounds that would justify the issuance of a preliminary injunction: (1) Since the statute is not unconstitutional on its face and the film is assumed by the Court to be obscene, and has been found to be obscene by the Superior Court, the plaintiffs have failed to establish the probability that they will ultimately prevail in this litigation. (2) There is no evidence before us that plaintiffs will suffer irreparable injury if they are prevented from showing the film until final disposition of their appeal. There has been no showing of the extent of the monetary loss, if any, that they will suffer if they are not allowed to show the film. We should not concern ourselves with the diminution in the value of the film if its showing is delayed for a substantial period of time. The film is not owned by the plaintiffs, but by Grove Press, Inc., which is not a party to this litigation. Furthermore, there is no evidence of the economic value of the film. (3) The mere possibility that" }, { "docid": "21936167", "title": "", "text": "that the state court may construe its statute so as to avoid constitutional issues, but abstention is not appropriate simply to allow the state court to be the one to decide the statute’s basic conflict with the federal constitution. We do understand, however, certain apprehensions voiced by the defendant. We note, accordingly, that this is a decision of probability, not a final holding that the Massachusetts statute is unconstitutional. Much less is it a decision that one who distributes to children, or who creates a clear public nuisance, has standing to raise the contention that the statute is overbroad. The preliminary injunction presently to issue will be restricted to, and conditioned upon, plaintiffs’ adherence to the restrictions described earlier in this opinion. Nor do we consider the difference between the right to regulate conduct as distinguished from expression. Cf. City of Portland v. Derrington, Or. 2/26/69, 451 P.2d 111, cert. denied Derrington v. City of Portland, 396 U.S. 901, 90 S.Ct. 212, 24 L.Ed.2d 177. Finally, we voice no opinion as to the legal consequences if plaintiffs exhibit their film under the protection of our injunction, and it is ultimately determined that our view was mistaken and that such exhibition was properly considered illicit. Because of the importance of the matter, the injunction will not issue for one week, to permit plaintiffs to add other parties, if so advised, and to give the defendant the opportunity to apply to the Circuit Justice for a stay. . Grove Press, Inc.’s motion to intervene was originally denied, counsel being permitted, instead, to appear as an amicus. In view of this opinion, Grove Press may be allowed to renew its motion at an early date. . “ § 28A. Importing, printing, distributing or possessing obscene tilings Whoever imports, prints, publishes, sells or distributes a pamphlet, ballad, printed paper, phonographic record, or other thing which is obscene, indecent or impure, or an obscene, indecent or impure print, picture, figure, image or description, or buys, procures, receives or has in his possession any such pamphlet, ballad, printed paper, phonographic record, obscene, indecent or impure print," }, { "docid": "4541255", "title": "", "text": "(1957). The New York statute there provided for a trial within one day after joinder of issue and a decision within two days of the conclusion of the trial. The instant procedure falls far short of that required.” 248 A.2d at 47-48. Our finding of constitutional deficiency in the Pennsylvania procedural schema controls our determination in two important respects. Because the Pennsylvania preliminary injunctive process “fails to provide adequate safeguards against undue inhibition of protected expression,” Freedman, supra, it presents “special circumstances” within the “chilling effects” exception of Zwickler. It was therefore proper for the district court to refuse to abstain from considering the case on its merits. Additionally, the same determination of constitutional deficiency decides the issue on the merits; this finding is ample justification for the district court to have enjoined the City from proceeding for a preliminary injunction in the state court to restrain the exhibition of the film. We will affirm the judgment of the district court. Consistent with the views expressed herein, however, the case will be remanded for the limited purpose of having the district court order modified to reflect our precise holding. The modified order shall enjoin the City from: (1.) Seeking to restrain the exhibition of the film by a preliminary injunction proceeding prior to a final adjudication. (2.) Seeking to restrain the exhibition of the film in any civil proceeding on the theory that the common law doctrine of public nuisance is capable of defining the limits of prohibited expression. . In a Tariff Act proceeding, 19 U.S.C.A. § 1305, the government sought to prohibit the film’s importation on the ground that it was obscene. A jury found it to be obscene, United States v. A Motion Picture Film Entitled “I Am Curious — Yellow,” 285 F.Supp. 465 (S.D.N.Y.1968). The United States Court of Appeals for the Second Circuit reversed, 404 F.2d 196 (2 Cir. 1968). . 18 P.S. § 4528 provides that it shall be a misdemeanor to exhibit a motion picture “of an obscene nature” and that “an exhibition shall be deemed obscene if, to the average person applying" }, { "docid": "4541238", "title": "", "text": "the court below did issue the injunction requested' by Grove, it refused the prayer for declaratory judgment on the issue of the film’s obscenity. There was no appeal taken from this denial. Accordingly, declaratory judgment considerations are not before us. Additionally, because the film is no longer being shown by the defendant-exhibitors at the 19th & Chestnut Street Theatre, the appeal in the remand case has been dismissed on the ground of mootness. This latter disposition does not affect the present appeal since public advertisements reveal that the film is now being shown in four locations in rerun movie houses in the City of Philadelphia. We therefore move to consider whether the district court acted correctly in enjoining Philadelphia from further interference with the showing of the film. In so doing, a threshold question of fundamental importance must command our attention : When m!ay a federal court intervene in proceedings beforp a state forum? Because the power and jurisdiction of the lower federal courts are subject to Congressional supervision, we begin with an analysis of the relevant legislation. 28 U.S.C.A. § 2283 provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” Thus it is evident that the maintenance of a delicate balance between federal and state judicial functions is a Congressional mandate which, under ordinary circumstances, prohibits a federal court from enjoining state proceedings, This court has previously held, however, that the Civil Rights Act of 1871, 42 U.S.C.A. § 1983, invoked by Grove, creates an express statutory exception to the general prohibition of Section 2283. Cooper v. Hutchinson, 184 F.2d 119 (3 Cir. 1950) It is questionable, however, that federal intervention in this case should lean on so slender a reed. We are not at all certain that an appropriate case of deprivation of civil rights was properly pleaded. In the absence of an averment alleging state court procedural deficiencies interfering with those rights, Grove seems" }, { "docid": "9421434", "title": "", "text": "fashioned an abstention doctrine preventing federal courts from interfering with state criminal proceedings, even if there is an allegation of a federal constitutional violation. Younger abstention has been extended to civil proceedings where important state interests are involved. Huffman v. Pursue, 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975): Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). In Huffman, state officials instituted a civil nuisance proceeding against an adult theater under an Ohio statute which made the exhibition of obscene films a nuisance. The state prevailed in the trial court and obtained an injunction. Rather than appealing the judgment, the theater owner filed a suit in federal court under 42 U.S.C. § 1983 seeking declaratory and injunctive relief. The Supreme Court held that the lower federal courts were required to abstain under Younger. The court reasoned that the state’s nuisance proceeding was “more akin to a criminal prosecution than are most civil cases.” Id. at 604, 95 S.Ct. at 1208. In Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), the Supreme Court clarified that Younger abstention applies to all civil cases in which the state is a party. The Supreme Court has further explained that abstention is appropriate when the state is a party or when important state interests are at stake and so long as the state system provides an opportunity to adjudicate federal constitutional claims. Moore v. Sims, 442 U.S. 415, 423-26, 99 S.Ct. 2371, 2377-79, 60 L.Ed.2d 994 (1979). In determining whether a federal court should abstain on Younger grounds, the court must examine: (1) the nature of the state proceedings in order to determine whether the proceedings implicate important state interests, (2) the timing of the request for federal relief in order to determine whether there are ongoing state proceedings, and (3) the ability of the federal plaintiff to litigate its federal constitutional claims in the state proceedings. Kenneally v. Lungren, 967 F.2d 329, 331-32 (9th Cir.1992) (citing Middlesex, 457 U.S. 423, 102 S.Ct. 2515), cert." }, { "docid": "21936159", "title": "", "text": "ALDRICH, Circuit Judge. This is a three-judge district court action in which a frontal attack is made upon a state obscenity statute, based upon the Court’s recent decision in Stanley v. Georgia, 1969, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542. In that case the Court reversed a state conviction for possession of a eoncededly obscene moving picture film, found in the home of the defendant. We are asked to rule that this decision extends to a case where the possessors permitted a number of consenting adults or, more exactly, paying adult members of the public, to view their possibly obscene picture in a moving picture house. Briefly, the facts are these. Plaintiffs Karalexis et al. are the owners and operators of a moving picture theatre which has been engaged in showing a film, owned and leased by Grove Press, Inc., entitled “I Am Curious (Yellow).” The named defendant is the county district attorney who has charged plaintiffs with violation of Mass.G.L. c. 272 § 28A as a result of their exhibiting the film, but notice has been given, 28 U.S.C. § 2284, and an assistant attorney general has conducted the defense throughout. Plaintiffs seek a declaration that the statute is unconstitutional and an injunction against prosecution thereunder. Because of the fact that the original indictments were defective, the proceedings sought to be enjoined postdate the assumption of jurisdiction by this court, and no question arises under 28 U.S.C. § 2283, the anti-injunction, or what is sometimes called the comity, statute. Defendant’s broad motion to dismiss tests the substance of plaintiffs’ case. Our present question, however, is only whether we shall issue a temporary injunction pending final disposition, there being possible reasons to withhold the making of a final decision, which we have not yet fully explored. Alternatively, there is the question whether we should abstain altogether, without granting temporary relief. With respect to the first question the issues, of course, are whether there is a probability that plaintiffs will ultimately prevail, Automatic Radio Mfg. Co. v. Ford Motor Co., 1 Cir., 1968, 390 F.2d 113, cert. denied 391" }, { "docid": "4541235", "title": "", "text": "Sir. THE COURT: Without reference to the obscenity statute? MR. IVINS: The only time the obscenity statute can come into it is where someone wants to know what will make a matter obscene, what will make a matter a public nuisance. If indirectly it were decided that this film corrupts the morals, someone may say: on what basis are you alleging that? It may well be I would have to bring in obscenity. But at this moment and in the present posture of this case we are proceeding on the ground that this is a public nuisance.” Before the return date of the rule, however, the defendant exhibitors removed the action to the United States District Court for the Eastern District of Pennsylvania, citing as justification for the removal the original jurisdiction of the federal courts over matters involving a federal question arising under the Constitution of the United States. The City presented an opposing motion to remand the action to the state court. Thereafter, on May 1, 1969, with the removed action still pending in the district court, a separate suit was filed before the federal forum by Grove Press, Inc., a New York corporation and distributor of the Swedish film in the United States. Grove was not a party to the pri- or action commenced by the City in the state court. In its suit Grove alleged diversity of citi2ienship, the existence of a federal constitutional question and violations of federal Civil Rights legislation as the basis for the district court’s jurisdiction. Grove sought to enjoin the City from interfering with the exhibition of the film and requested a declaratory judgment that the movie was not obscene under federal constitutional standards. The district court granted Grove’s prayer for an injunction and restrained the City from proceeding in the state courts on a theory of public nuisance. The court found the City’s actions “repugnant to the Due Process Clause of the Fourteenth Amendment,” because the concept of public nuisance was too broad and too vague a test to proscribe activities as beyond First Amendment protection. Citing the doctrine of" }, { "docid": "922402", "title": "", "text": "the states, the proper functioning of the judicial system depends upon the competence and integrity of the members of the bar and their compliance with appropriate standards of professional responsibility. 458 F.2d at 1213. Appellant’s principal assault upon Erd-mann is founded upon the contention that Younger abstention does not properly apply since the pending disciplinary proceedings are civil in nature, although appellant somewhat anomalously asserts at the same time that they are criminal with respect to the vesting of Fifth Amendment privileges. Appellant claims that Erdmann has been eroded by Judge Smith’s comment in his opinion for this court in Blouin v. Dembitz, 489 F.2d 488, 490-91 (1973) that Younger abstention should be limited to cases involving traditional criminal proceedings until the Supreme Court instructs otherwise. The opinion did not cite Erdmann and of course did not purport to override it. More significantly, however, the Supreme Court has recently instructed otherwise and has explicitly extended the Younger doctrine so that its application does not depend upon the simplistic civil-criminal dichotomy. In Huffman v. Pursue, Ltd., - U.S. -, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), a sheriff and a prosecuting attorney of an Ohio county instituted a proceeding under a state statute which provided that a place which exhibits obscene films is a nuisance; the statute mandated closure for up to a year as well as authorizing preliminary injunctive relief, the sale of all personal property used in conducting the nuisance and the release of the closure order only upon the satisfaction of certain conditions. The state court determined that the theatre in question had exhibited obscene films and ordered its closure for a year. Appellee, Pursue, Ltd., successor to the leasehold to the theatre, rather than appealing the state court order filed suit based on 42 U.S.C. § 1983 in the federal district court, seeking a declaration that the Ohio statute was unconstitutional and also requesting injunctive relief. A three-judge district court concluded that the statute constituted an overly broad prior restraint on First Amendment rights and issued permanent injunctive relief.. On direct appeal the Supreme Court vacated the" }, { "docid": "4541236", "title": "", "text": "in the district court, a separate suit was filed before the federal forum by Grove Press, Inc., a New York corporation and distributor of the Swedish film in the United States. Grove was not a party to the pri- or action commenced by the City in the state court. In its suit Grove alleged diversity of citi2ienship, the existence of a federal constitutional question and violations of federal Civil Rights legislation as the basis for the district court’s jurisdiction. Grove sought to enjoin the City from interfering with the exhibition of the film and requested a declaratory judgment that the movie was not obscene under federal constitutional standards. The district court granted Grove’s prayer for an injunction and restrained the City from proceeding in the state courts on a theory of public nuisance. The court found the City’s actions “repugnant to the Due Process Clause of the Fourteenth Amendment,” because the concept of public nuisance was too broad and too vague a test to proscribe activities as beyond First Amendment protection. Citing the doctrine of Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), the court also viewed the Pennsylvania procedures in equity as “an additional threat to the freedom of expression,” because they failed to guarantee prompt final judicial determination of the First Amendment issue which was the subject of preliminary restraint. In granting the injunction the court was careful to point out that it was not finding the film constitutionally protected, but only that the City could not attempt to prohibit its exhibition under the theory of a common law nuisance. The court made a specific finding that its action was “not based on a conclusion that the City proceeded against the film in bad faith.” Indeed, the court concluded that the question of the film’s nonobscenity was not so clear that the mere institution of a proceeding to enjoin it under a properly drawn obscenity statute would be violative of federal constitutional rights. 300 F.Supp. 281, 287. I. Preliminarily, it is important to note what is not before us in this appeal. Although" }, { "docid": "4541254", "title": "", "text": "is clear that any such restraint must be carefuly circumscribed. In Freedman v. State of Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965) the Supreme Court discussed the ‘procedural safeguards designed to obviate the dangers of a censorship system.’ One of these safeguards was a prompt, final judicial decision. * * The fact that appellants may have been offered a full dress hearing within four days of the original restraint does not suffice. Quite clearly, there is no provision for a prompt decision. It is vital that the continuance of First Amendment freedoms not be dependent upon the efficiency of a particular judge but upon procedural safeguards clearly embodied in a statute. We can only suggest, as did the Court in Freedman, supra, that a model for such a statute which can safeguard both the First Amendment freedoms of exhibitors and publishers, and the freedom from obscenity of society as a whole can be found in Kinglsey Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). The New York statute there provided for a trial within one day after joinder of issue and a decision within two days of the conclusion of the trial. The instant procedure falls far short of that required.” 248 A.2d at 47-48. Our finding of constitutional deficiency in the Pennsylvania procedural schema controls our determination in two important respects. Because the Pennsylvania preliminary injunctive process “fails to provide adequate safeguards against undue inhibition of protected expression,” Freedman, supra, it presents “special circumstances” within the “chilling effects” exception of Zwickler. It was therefore proper for the district court to refuse to abstain from considering the case on its merits. Additionally, the same determination of constitutional deficiency decides the issue on the merits; this finding is ample justification for the district court to have enjoined the City from proceeding for a preliminary injunction in the state court to restrain the exhibition of the film. We will affirm the judgment of the district court. Consistent with the views expressed herein, however, the case will be remanded for the" }, { "docid": "4541239", "title": "", "text": "the relevant legislation. 28 U.S.C.A. § 2283 provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” Thus it is evident that the maintenance of a delicate balance between federal and state judicial functions is a Congressional mandate which, under ordinary circumstances, prohibits a federal court from enjoining state proceedings, This court has previously held, however, that the Civil Rights Act of 1871, 42 U.S.C.A. § 1983, invoked by Grove, creates an express statutory exception to the general prohibition of Section 2283. Cooper v. Hutchinson, 184 F.2d 119 (3 Cir. 1950) It is questionable, however, that federal intervention in this case should lean on so slender a reed. We are not at all certain that an appropriate case of deprivation of civil rights was properly pleaded. In the absence of an averment alleging state court procedural deficiencies interfering with those rights, Grove seems to be arguing that it is a deprivation of one’s civil rights to have a state court consider that state’s law of common law public nuisance and its laws of obscenity. Although we know of no interpretation of § 1983 by any court which has given such breadth to the statute, yet, we do not deem it necessary to reach this question, for we prefer to focus our attention on those judicially recognized exceptions to the general prohibition against federal intervention. The basic rule is expressed in Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943) which, consonant with the letter of 28 U.S.C.A. § 2283, discourages federal interference with a state’s good faith administration of its civil and criminal proceedings. This is based on the assumption that the state courts will observe constitutional limitations, and “the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings.” Dombrowski v. Pfister, 380 U.S. 479," }, { "docid": "17047814", "title": "", "text": "District Attorney of Los Angeles County from prosecuting Harris under the California Criminal Syndicalism Act. Harris claimed that the Act violated his rights of free speech and press. The District Attorney petitioned for certiorari claiming that the action of the district court was prohibited by the Anti-Injunction Act. The Supreme Court reversed, holding that the district court should have abstained. This finding was based first on principles of equitable restraint. Absent a finding of bad faith or harassment, a criminal defendant must establish that he would suffer “great and immediate” injury if not granted injunctive relief. Younger, supra, 401 U.S. at 46, 91 S.Ct. at 751. Second, the Court emphasized that these principles are reinforced by notions of comity and federalism which underlie the Anti-Injunction Act. This rationale was extended to a civil nuisance proceeding in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). The state court had entered judgment for the county, finding that appellee's predecessor had violated state nuisance laws by exhibiting obscene films. The judgment provided for the sale and seizure of property used in the theater’s operation. Rather than appeal this decision in state court, appellee sought injunctive relief in federal district court under 42 U.S.C. § 1983, alleging that appellant’s use of the nuisance statute was a deprivation of constitutional rights under color of state law. Appellants argued the Younger doctrine for the first time on appeal. The Huffman Court held that abstention was required on three grounds. First, the principles of federalism discussed in Younger applied. Second, the Court held that a nuisance proceeding was more akin to a criminal prosecution than are most cases. The State was a party to the action which was “both in aid of and closely related to criminal statutes.” Id. at 604, 95 S.Ct. at 1208. The Court noted that the injunction had “disrupted the State’s efforts to protect the very interests which underlie its criminal laws and to obtain compliance with precisely the standards which are embodied in its criminal laws.” Id. at 605, 95 S.Ct. at 1208. Third, the Court" } ]

[ { "docid": "8345900", "title": "", "text": "under North Dakota Century Code § 28-22-03.l(4)(b). However, once determining that § 28-22-03.1(4)(b) applies to the subject annuity the issue becomes how much of the annuity payments may be exempted. North Dakota Century Code § 28-11-03.1(4)(b) is identical to the federal exemption contained in Bankruptcy Code section 522(d)(11)(D). Section 28-22-03.-1(4)(b) as does section 522(d)(11)(D) provides that $7,500.00 may be exempted for actual personal bodily injury. The legislative history to the federal exemption indicates that the provision “is designed to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings.” H.R.Rep. No. 595, 95th Cong. 1st Sess. 362, reprinted in 1978 U.S.Code Cong, and Admin. News 5787, 5963, 6318. In re Haga, 48 B.R. 492, 495 (Bankr.E.D.Tenn.1985); In re Territo, 32 B.R. 377, 381 (Bankr.E.D.N.Y.1983). While actual personal bodily injury or personal bodily injury is not defined by the Code, the Debtor’s injuries must be substantial enough to qualify as a personal injury. In re Territo, 32 B.R. 377, 381 (Bankr.E.D.N.Y.1983). The parties have agreed that Ms. Johnson suffered a bodily injury which was serious enough to attribute $7,500.00 of compensation. Absent a clear definition under the Bankruptcy Code this court will accept that the injury was both personal and serious. Therefore, because of the serious nature of the injury this court will allow the full $7,500.00 exemption pursuant to North Dakota Century Code § 28-22-03.1(4)(b). For the above stated reasons the objection of Ray Cooperative Credit Union as expressed in its motion for reconsideration is sustained. Upon reconsideration, the Debtors’ claim of exemption in annuity payments stemming from the settlement agreement is limited to $7,500.00 under N.D.Cent.Code § 28-22-03.1(4)(b). IT IS SO ORDERED. . Bankruptcy Code section 522(d)(10)(E) a payment under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the" } ]

[ { "docid": "10278330", "title": "", "text": "to demonstrate that the exemption is proper. See, In re Hollar, 79 B.R. 294, 296 (Bankr.S.D.Ohio 1987). Section 2329.66(A)(12)(c) of Ohio Rev.Code requires allocation to show that the payments actually are for personal bodily injury. The demands of allocation have not been the subject of much case law. However, at least one Ohio Court of Appeals has addressed the issue. With the agreement of the parties, the Court in Mike v. Rendano recognized that “the statute does not exempt payments for pain and suffering or compensation for actual pecuniary loss, including medical payments.” (Aug. 5, 1985) Mahoning App. No. 84 C.A. 72, 1985 WL 7019 (unreported). This reasoning also is in accord with the federal decisions interpreting this statute. As stated by one court: These courts have generally determined that this language allows a debtor a maximum exemption of five thousand dollars ($5,000) from the proceeds of a personal injury settlement separate from payment for pain and suffering or lost wages. In re Young, 93 B.R. 590, 594 (Bankr.S.D.Ohio 1988). See also, In re Brooks, 12 B.R. 22, 25 (Bankr.S.D.Ohio 1981). Because the exemption does not include amounts properly attributable either to pain and suffering or to actual pecuniary loss, those amounts must be separated from the total award. Further, pursuant to Ohio Rev.Code § 2329.66(A)(12)(d), payments which compensate for the loss of future earnings are treated as a separate exemption. See In re Carson, 82 B.R. 847, 855-856 (Bankr.S.D.Ohio 1987). Upon consideration of the requirements and limitations of the statute and the allocated burden of proof, the Court concludes that the Debtor’s claimed exemption of $5,000 must fail. The Trustee, as the objecting party, met his initial burden of demonstrating that the Debtor’s claimed exemption is inappropriate by showing that the Debtor had failed to allocate the award to show that any payments were for personal bodily injury. It is not enough for the Debtor merely to claim the entire amount as exempt. Once that exemption is challenged, some showing must be made that the award is for personal bodily injury and not for pain and suffering or actual" }, { "docid": "12398558", "title": "", "text": "accompany such a loss, such as medical payments, pain and suffering, or loss of earnings. Those items are handled separately by the bill.” H.R. 95-595, 95th CONG., 1st Sess. 362 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. This legislative history is cited in 3 COLLIER ON BANKRUPTCY, 11 522.20, at 522-68 (15th ed. 1987). However, the effect of this passage as conclusively limiting the scope of the term “personal bodily injury” has been rejected by two courts in In re Territo, 36 B.R. 667 (Bankr.E.D.N.Y.1984); and In re Lynn, 13 B.R. 361 (Bankr.W.D.Wisc.1981). A small number of cases have addressed § 522(d)(ll)(D) or an identical state law provision, and, while none of them are precisely on point to the facts herein, the courts deciding them have been uniform in accepting, oftentimes without discussion or analysis, the premise that any claim for bodily injury in excess of $7,500.00 is nonexempt property, as well as the premise that any claim which consists of purely pain and suffering or actual pecuniary loss would not be exempt. In re Tignor, 729 F.2d 977 (4th Cir.1984) (under state law, which is identical to § 522(d)(11)(D), claim of exemption for bodily injury will be allowed under Virginia homestead exemption); In re Geis, 66 B.R. 563 (Bankr.N.D.Ga.1986) (court interprets state law provision which is identical to § 522(d)(11)(D) in dictum); In re Haga, 48 B.R. 492 (Bankr.E.D.Tenn.1985) (court interprets state law provision which is identical to § 522(d)(ll)(D) and finds that the debtor’s actual bodily injuries are extensive enough to account for at least $7,500.00; the debt- or is allowed the full $7,500.00 exemption; In re Shahan, 40 B.R. 608 (Bankr.N.D.Tex.1984) (court's interpretation of § 522(d)(ll)(D) grants the debtor an exemption of $7,500.00 for injuries received in an automobile collision without discussion); Territo, supra (in interpreting § 522(d)(ll)(D), the court concludes that pain and suffering logically encompasses only mental and emotional trauma which distinguishes pain and suffering from bodily injury and court allows exemption for bodily injury); Lynn, supra (in interpreting § 522(d)(ll)(D), the court concludes that proper analysis requires mere inquiry of whether $7,500.00 claimed" }, { "docid": "12398559", "title": "", "text": "re Tignor, 729 F.2d 977 (4th Cir.1984) (under state law, which is identical to § 522(d)(11)(D), claim of exemption for bodily injury will be allowed under Virginia homestead exemption); In re Geis, 66 B.R. 563 (Bankr.N.D.Ga.1986) (court interprets state law provision which is identical to § 522(d)(11)(D) in dictum); In re Haga, 48 B.R. 492 (Bankr.E.D.Tenn.1985) (court interprets state law provision which is identical to § 522(d)(ll)(D) and finds that the debtor’s actual bodily injuries are extensive enough to account for at least $7,500.00; the debt- or is allowed the full $7,500.00 exemption; In re Shahan, 40 B.R. 608 (Bankr.N.D.Tex.1984) (court's interpretation of § 522(d)(ll)(D) grants the debtor an exemption of $7,500.00 for injuries received in an automobile collision without discussion); Territo, supra (in interpreting § 522(d)(ll)(D), the court concludes that pain and suffering logically encompasses only mental and emotional trauma which distinguishes pain and suffering from bodily injury and court allows exemption for bodily injury); Lynn, supra (in interpreting § 522(d)(ll)(D), the court concludes that proper analysis requires mere inquiry of whether $7,500.00 claimed exemption was “on account of actual bodily injury” and holds that an award for loss of consortium is such an injury, entitling the debtor to exempt the $7,500.00); In re Musgrove, 7 B.R. 892 (Bankr.W.D.Va.1981) (under state law which is identical to § 522(d)(11)(D), an unliquidated and contingent claim against an employer under Federal Employer’s Liability Act is exempt). Only two courts, Territo and Lynn, have really analyzed the real question of how to interpret the phrase “bodily injury” in § 522(d)(ll)(D). We are persuaded by their analysis and conclusion that § 522(d)(ll)(D) does not mandate the exclusion of pain and suffering damages unless pain and suffering encompasses only mental and emotional trauma or unless the Debtor’s bodily injury is clearly insufficient to merit compensation of $7,500.00 in itself. As the Territo court holds, any other interpretation of § 522(d)(11)(D) would render it virtually meaningless. Territo, supra, 36 B.R. at 670. The Lynn court goes so far as to state that the “legislative history cannot be taken seriously. It specifically excludes all of the types" }, { "docid": "3533404", "title": "", "text": "trustee to sustain that burden and his objection to the exemption must be overruled. 81 B.R. at 432. Similarly, in Matter of Harris, 50 B.R. 157 (Bankr.E.D.Wis.1985), the bankruptcy court explained: [Tjhe parties did not specify whether this settlement covered medical expenses, pain and suffering, pecuniary loss or anything else.... Bankruptcy Rule 4003(c) places on the objecting party the burden of proving that exemptions are not properly claimed. Hence, the court must conclude ... that the objecting parties failed to meet this burden. No evidence was presented, medical or otherwise, that would indicate that all or any part of the [settlement] was an award for pain and suffering and thus not subject to exemption.... Thus, the court must conclude that the exemptions the debtor claimed ... are proper and must be allowed. 50 B.R. at 159. See also In re Miller, 36 B.R. 420 (Bankr.D.N.M.1984) (“Since Bankruptcy Rule of Procedure 4003(c) places the burden of proof on the party objecting to the claim of exemption, and the Trustee has adduced no evidence contradicting the Debtor’s characterization of the settlement as compensation for future lost earnings, the Debtor’s position must be accepted”) (emphasis added). In the absence of any evidence presented by the Trustee, this Court may simply accept the Debtor’s characterization of her claim as falling within an exempt category as long as it appears from the facts that the claimed personal injury award could reasonably fall within an exempt category. See, e.g., In re Territo, 36 B.R. 667, 670 (Bankr.E.D.N.Y.1984) (“I also find that despite any pain and suffering that presumably accompanied that injury, the injury alone was extensive enough to account for all of the money received in settlement of his state court action ... ”); In re Haga, 48 B.R. 492, 495 (Bankr. E.D.Tenn.1985) (“Here, the debtor’s actual bodily injury and resulting disability are extensive enough to account for at least $7,500.00 of the damages awarded. The debtor is thus entitled to the full $7,500.00 exemption under [Tennessee law]”). This result naturally follows from Bankruptcy Rule 4003(e)’s placement of the burden of proof on the objecting party;" }, { "docid": "3533405", "title": "", "text": "characterization of the settlement as compensation for future lost earnings, the Debtor’s position must be accepted”) (emphasis added). In the absence of any evidence presented by the Trustee, this Court may simply accept the Debtor’s characterization of her claim as falling within an exempt category as long as it appears from the facts that the claimed personal injury award could reasonably fall within an exempt category. See, e.g., In re Territo, 36 B.R. 667, 670 (Bankr.E.D.N.Y.1984) (“I also find that despite any pain and suffering that presumably accompanied that injury, the injury alone was extensive enough to account for all of the money received in settlement of his state court action ... ”); In re Haga, 48 B.R. 492, 495 (Bankr. E.D.Tenn.1985) (“Here, the debtor’s actual bodily injury and resulting disability are extensive enough to account for at least $7,500.00 of the damages awarded. The debtor is thus entitled to the full $7,500.00 exemption under [Tennessee law]”). This result naturally follows from Bankruptcy Rule 4003(e)’s placement of the burden of proof on the objecting party; in the face of a reasonable claim and the absence of any evidence to the contrary, the burdened party must lose. Thus, the only unresolved question before the Court is whether the Debtors have asserted an exemption that reasonably falls within Ohio Rev.Code § 2329.-66(A)(12)(c). As with all exemption statutes, it must be liberally construed in favor of the debtor. Matter of Young, 93 B.R. 590 (Bankr.S.D.Ohio 1988). While this final determination may initially appear to be without difficulty, the poorly-chosen words that comprise § 2329.-66(A)(12)(c) transform this task into one of needless intricacy. The statute expressly excludes from exemption both compensation for “pain and suffering” and compensation for “actual pecuniary loss.” On its face, it only expressly includes within the exemption compensation received on account of “personal bodily injury.” Unfortunately, no definition is provided in the statute for any of these terms, and Ohio’s courts have not clarified the issue. Initially, this Court is left wondering what the legislature intended to be exempt when both pain and suffering and actual pecuniary loss are excluded" }, { "docid": "10278329", "title": "", "text": "(A) Every person who is domiciled in this state may hold property exempt from execution, garnishment, attachment or sale to satisfy a judgment or order as follows: * * * * * (12) The person's right to receive, or moneys received during the preceding twelve calendar months from any of the following: * * * * * * (c) A payment, not to exceed five thousand dollars, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the person or an individual for whom the person is a dependent; When an objection is raised to a debtor’s claim of exemption, it is the burden of the objecting party to prove that the exemption is not properly claimed. Bankruptcy Rule 4003(c). The rule places upon the objecting party the initial burden of showing the inappropriateness of the asserted exemption. That burden is met by the introduction of evidence which rebuts the prima facie effect of the claim of exemption. Successful rebuttal then shifts the burden to the debtor to demonstrate that the exemption is proper. See, In re Hollar, 79 B.R. 294, 296 (Bankr.S.D.Ohio 1987). Section 2329.66(A)(12)(c) of Ohio Rev.Code requires allocation to show that the payments actually are for personal bodily injury. The demands of allocation have not been the subject of much case law. However, at least one Ohio Court of Appeals has addressed the issue. With the agreement of the parties, the Court in Mike v. Rendano recognized that “the statute does not exempt payments for pain and suffering or compensation for actual pecuniary loss, including medical payments.” (Aug. 5, 1985) Mahoning App. No. 84 C.A. 72, 1985 WL 7019 (unreported). This reasoning also is in accord with the federal decisions interpreting this statute. As stated by one court: These courts have generally determined that this language allows a debtor a maximum exemption of five thousand dollars ($5,000) from the proceeds of a personal injury settlement separate from payment for pain and suffering or lost wages. In re Young, 93 B.R. 590, 594 (Bankr.S.D.Ohio 1988). See also, In re Brooks," }, { "docid": "18548375", "title": "", "text": "their entitlement to an exemption. See 11 U.S.C. § 522(b)(1); O.R.C. § 2829.662. Ohio Revised Code § 2329.66(A)(12)(c) provides an exemption for: [a] payment, not to exceed five thousand dollars, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the person or an individual for whom the person is a dependent!!] The Trustee has failed to meet his burden of proof in challenging Daniel’s entitlement to a $5,000.00 exemption under O.R.C. § 2329.66(A)(12)(c). See Lester v. Storey (In re Lester), 141 B.R. 157, 164 (S.D.Ohio 1991) (held that trustee failed to rebut prima facie effect of claimed exemption where it reasonably appeared that injury was substantial enough to reasonably account for value of claimed exemption); see also In re Yohnke, 13 B.R. 121 (Bankr.N.D.Ohio 1981) (concluding that injury which caused the debtor to walk with a limp represented a personal bodily injury within the meaning of O.R.C. § 2329.66(A)(12)(c)); cf. In re Bates, 123 B.R. 38, 40 (Bankr.S.D.Ohio 1990) (granting exemption where debtor suffered injury which caused him loss of work). Under Ohio law, a debtor may claim an exemption for personal bodily injury to a person “for whom the person is a dependent”. O.R.C. § 2329.66(A)(12)(e); In re Turner, 190 B.R. 836, 841 (Bankr.S.D.Ohio 1996) (citations omitted). Nevertheless, the Trustee has carried his burden of establishing that Yolanda is not entitled to such an exemption. Furthermore, even if this Court could conclude that § 2329.66(A)(12)(c) provides an exemption for loss of consortium, the Trustee has satisfied the Court that any claim of an exemption by Yolanda for loss of consortium is unfounded. Whether the Debtors are Entitled to an Exemption Under O.R.C. § 2329(A)(12)(d) Ohio Revised Code § 2329.66(A)(12)(d) provides an exemption for: [a] payment in compensation for loss of future earnings of the person or an individual of whom the person is or was a dependent, to the extent reasonably necessary for the support of the debtor and any of his dependents. The Trustee has sustained his burden of establishing that the Proceeds do not represent compensation for loss" }, { "docid": "18797365", "title": "", "text": "could have exempted portion of a settlement representing recovery of wages pursuant to § 522(d)(ll)(E) had he not concealed the cause of action in violation of 11 U.S.C. § 522(g)(1)(B)). The Court, therefore, holds that O.R.C. § 2329.66(A)(12)(d) does operate to exempt that portion of the Settlement, if any, which is attributable to compensation for the Debtor’s lost future wages. The difficulty facing the Court in applying the lost earnings exemption in the present case is that the Settlement is in lump-sum form. Several bankruptcy courts, confronted with similar factual situations, have undertaken the task of apportioning a lump-sum payment (either a lump-sum settlement or an award based upon a general jury verdict) between various exempt and non-exempt categories of damages. See, e.g., In re Haga, 48 B.R. 492 (Bankr.E.D.Tenn.1985) (allocating a portion of general jury award to compensation for actual bodily injury and loss of future wages, both of which were exempt under both Tennessee and federal law); In re Territo, 36 B.R. 667, 670-71 (Bankr.E.D.N.Y.1984) (although settlement failed to specify an allocation between personal injury, property damage, pain and suffering, or lost earnings, the Court concluded that “most, if not all of the ... settlement could be reasonably attributed to lost earnings, and could be retained as exempt property”)- While the above cases support the Court’s authority to apportion a lump-sum settlement between various exempt and non-exempt categories of damages, the Court declines to do so in the case at bar. In the present case, not a scintilla of evidence was offered to assist the Court in making an allocation of the Settlement. Hence, on the state of the record before it, the Court is unable to conclude that a rational basis exists upon which to make an informed apportionment of the Settlement. Normally, this failure of proof with respect to the issue of what portion of the Settlement should properly be allocable to compensation for future lost wages would redound to the detriment of the Trustee. B.R. 4003(c) places the burden of proof on the party objecting to the claim of exemption. Because the Trustee failed to" }, { "docid": "1177182", "title": "", "text": "short, $5,334.61 (i.e. $4,267.69 + $1,066.92) of the total amount constitutes damages (and interest thereon) for debtor’s actual pecuniary loss. Thus, the debtor may not exempt $5,334.61 of the $26,040.00. Tennessee has opted out of the federal bankruptcy exemptions. 11 U.S.C.A. § 522(b)(1) (1979); Tenn.Code Ann. § 26-2-112 (1980). Under the applicable state statute, the debtor may exempt “[a] payment, not to exceed seven thousand five hundred dollars ($7,500) on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a de-pendent_” Tenn.Code Ann. § 26-2-111(2)(B) (1980). The $5,334.61 in damages for actual pecuniary loss (and interest thereon) is clearly not exempt under the statute. However, of the rest of the judgment proceeds, the debtor is entitled to a $7,500.00 exemption under the statute. The debtor’s state court judgment was a general verdict. There was no allocation by the jury of specific amounts to specific types of damages. The Tennessee exemption under § 26-2-lll(2)(B) is virtually identical to the federal exemption set forth in 11 U.S.C.A. § 522(d)(ll)(D) (1979). The legislative history to the federal exemption indicates that the provision “is designed to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings.” H.R.Rep. No. 595, 95th Cong., 1st. Sess. 362, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5963, 6318. In Ford Motor Credit Co. v. Territo, 36 B.R. 667 (Bankr.E.D.N.Y.1984) the debtor had received $25,000.00 in settlement of a personal injury and property damage claim. Most of the proceeds had been disbursed. As here, the debtor sought to exempt the still undisbursed balance. The stipulation of settlement failed to specify what portion of the settlement was allocated to personal injury, property damage, pain and suffering, or lost earnings. The court concluded that, of the proceeds claimed as exempt, an amount equal to the actual property damage to the debtor’s vehicle was" }, { "docid": "4653770", "title": "", "text": "U.S.Code & Admin.News 1978, p. 5787. However, Congress did not expressly provide for exempting medical payments elsewhere in the Bill. Vukowich at 790. In addition, by excluding pain and suffering, loss of earnings and medical payments, it seems that there is nothing which is not excluded from the payment. Id. at 789, citing D. Dobbs, Remedies 540-51 (1973) (Three types of personal injury damages are for earnings, medical and related expenses, and pain and suffering). In the face of this confusion, the courts have resorted to a literal approach and have interpreted the statute according to its plain language. “The plain meaning of the words of the Ohio statute is that a payment of $5,000.00 or less which does not include pain and suffering or compensation for actual pecuniary loss is exempt.” In re Hill, 5 B.R. 518, 519 (Bankr.S.D.Ohio 1980) (Pettigrew, B.J.). The exemption is designed only to cover payments compensating actual bodily injury, that is, for example, loss of limb; thus, even medical payments are not exempt. Brooks, 12 B.R. at 25, citing 3 Collier on Bankruptcy para. 522.20, (15th ed. 1979). However, exemptions are to be liberally construed in favor of debtors in order to give full effect to the legislative intent of providing a fresh start. In re Kenworth, 47 B.R. 966, 972 (D.Colo.1985); In re Ancira, 5 B.R. 673, 674 (Bankr.N.D.Calif.1980). The statute at hand evidences a clear intent to assure a personal injury plaintiff some compensation for bodily injury. Mike v. Rendano, No. 84 C.A. 72, slip op. at 2, 1985 WL 7019 (Ohio App. August 5, 1985). Therefore, courts have refused to deny a debtor the exemption where the accident was severe, impaired the debtor's ability to work or caused permanent injury. See, Rendano, slip op. at 2; In re Yohnke, 13 B.R. 121, 122 (Banker.N.D.Ohio 1981). See also, Hill, 5 B.R. at 519. The debtor's failure to allocate the payment into amounts for pain and suffering, lost wages, etc. is not controlling because “it would be inequitable to summarily dismiss the claim because each segment was not neatly pigeonholed.” Rendano, slip op." }, { "docid": "1177183", "title": "", "text": "the federal exemption set forth in 11 U.S.C.A. § 522(d)(ll)(D) (1979). The legislative history to the federal exemption indicates that the provision “is designed to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings.” H.R.Rep. No. 595, 95th Cong., 1st. Sess. 362, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5963, 6318. In Ford Motor Credit Co. v. Territo, 36 B.R. 667 (Bankr.E.D.N.Y.1984) the debtor had received $25,000.00 in settlement of a personal injury and property damage claim. Most of the proceeds had been disbursed. As here, the debtor sought to exempt the still undisbursed balance. The stipulation of settlement failed to specify what portion of the settlement was allocated to personal injury, property damage, pain and suffering, or lost earnings. The court concluded that, of the proceeds claimed as exempt, an amount equal to the actual property damage to the debtor’s vehicle was not exempt under § 522(d)(ll)(D). However, the court found the rest of the undisbursed settlement proceeds to be exempt. Pointing to the existence of a back injury resulting in prolonged hospitalization and rehabilitation, the court concluded “that despite any pain and suffering that presumably accompanied that injury, the injury alone was extensive enough to account for all of the money received in settlement of his state court action less that amount attributable to damage to the vehicle.” Territo, 36 B.R. at 670. In the instant case, the debtor’s state court judgment was rendered by general verdict. Obviously, this court cannot now reconvene the state court jury and ascertain what factors figured in the rendering of the judgment. This court can only perform an analysis similar to that performed by the court in Territo. Here, the debtor’s actual bodily injury and resultant disability are extensive enough to account for at least $7,500.00 of the damages awarded. The debtor is thus entitled to the full $7,500.00 exemption under Tenn.Code Ann. § 26-2-lll(2)(B) (1980). The debtor has claimed" }, { "docid": "10278331", "title": "", "text": "12 B.R. 22, 25 (Bankr.S.D.Ohio 1981). Because the exemption does not include amounts properly attributable either to pain and suffering or to actual pecuniary loss, those amounts must be separated from the total award. Further, pursuant to Ohio Rev.Code § 2329.66(A)(12)(d), payments which compensate for the loss of future earnings are treated as a separate exemption. See In re Carson, 82 B.R. 847, 855-856 (Bankr.S.D.Ohio 1987). Upon consideration of the requirements and limitations of the statute and the allocated burden of proof, the Court concludes that the Debtor’s claimed exemption of $5,000 must fail. The Trustee, as the objecting party, met his initial burden of demonstrating that the Debtor’s claimed exemption is inappropriate by showing that the Debtor had failed to allocate the award to show that any payments were for personal bodily injury. It is not enough for the Debtor merely to claim the entire amount as exempt. Once that exemption is challenged, some showing must be made that the award is for personal bodily injury and not for pain and suffering or actual pecuniary loss. Placing this burden of production on the Debtor does not violate the requirement of Bankruptcy Rule 4003(c) because the objecting party still initially must establish that the exemption is not properly claimed. That burden is met, however, by a showing that the Debtor has failed to make the necessary allocation. This interpretation reflects the realistic assumption that only the Debtor possesses the evidence to establish proper allocation. If the payment is on account of personal bodily injury, it is exempt. But there is no presumption that an award is only for personal bodily injury. The Debtor did not sufficiently allocate any of the components of her award. She presented medical records and some medical bills, but none of the net settlement was allocated for pain and suffering or for bodily injury. Where there is no purported allocation, further inquiry by this Court into the appropriate amounts for each component is not warranted. B. Exemption Pursuant to Ohio Rev. Code § 2329.66(A)(12)(d). The Debtor also claimed as exempt an amount representing some lost wages." }, { "docid": "18548374", "title": "", "text": "bankruptcy court may deny amendment only upon a showing of bad faith or prejudice to creditors). First, the Trustee has not carried his burden of demonstrating that the Debtors have proceeded in bad faith or concealed assets. See In re Falconer, 79 B.R. 283, 288-91 (W.D.Mich.1987) (concluding that debtors’ misstatements as to number of cattle did not evidence the degree of bad faith necessary to deny exemptions); cf. In re Sumerell, 194 B.R. 818, 830-32 (Bankr.E.D.Tenn.1996) (determining that evidence was insufficient to support a finding of bad faith). Second, the Trustee has not satisfied the Court that the timing of the Debtor’s exemptions prejudiced creditors. See Tignor, 729 F.2d at 979 (concluding that trustee failed to establish prejudice to creditors warranting denial of exemption, notwithstanding the fact that trustee incurred legal fees and costs to obtain proceeds of personal injury claim for estate). WHETHER THE DEBTORS ARE ENTITLED TO THEIR CLAIMED EXEMPTIONS Whether the Debtors are Entitled to Exemptions Under O.R.C. § 2329(A)(12)(c) Contrary to the Debtors’ argument, Ohio law, rather than § 522(d), controls their entitlement to an exemption. See 11 U.S.C. § 522(b)(1); O.R.C. § 2829.662. Ohio Revised Code § 2329.66(A)(12)(c) provides an exemption for: [a] payment, not to exceed five thousand dollars, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the person or an individual for whom the person is a dependent!!] The Trustee has failed to meet his burden of proof in challenging Daniel’s entitlement to a $5,000.00 exemption under O.R.C. § 2329.66(A)(12)(c). See Lester v. Storey (In re Lester), 141 B.R. 157, 164 (S.D.Ohio 1991) (held that trustee failed to rebut prima facie effect of claimed exemption where it reasonably appeared that injury was substantial enough to reasonably account for value of claimed exemption); see also In re Yohnke, 13 B.R. 121 (Bankr.N.D.Ohio 1981) (concluding that injury which caused the debtor to walk with a limp represented a personal bodily injury within the meaning of O.R.C. § 2329.66(A)(12)(c)); cf. In re Bates, 123 B.R. 38, 40 (Bankr.S.D.Ohio 1990) (granting exemption where debtor suffered injury which" }, { "docid": "10036148", "title": "", "text": "or property that is traceable to— (D) a payment, not to exceed $15,000, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent of; or (E) a payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debt- or. We find § 522(d)(ll)(D) to be a difficult section to understand when read literally. In two opinions, In re Sidebotham, 77 B.R. 504, 506 (Bankr.E.D.Pa.1987), and more recently in dictum in In re Smith, 179 B.R. 437, 446-47 n. 4 (Bankr.E.D.Pa.1995), we held that the “exceptions” set forth in that Code section, payments on account of “pain and suffering” and “compensation for actual pecuniary loss,” must be narrowly construed. Thus, in Sidebotham we held that the “pain and suffering” exception excluded only damages awarded “solely for pain and suffering or far out of proportion to the actual bodily injuries suffered by the Debt- or.” 77 B.R. at 506. Consistent with our conclusion in Sidebotham and Smith that this section should include most claims which include bona fide bodily injury, we would only be inclined to exclude “compensation for actual pecuniary loss” which is so designated. Other courts have read the exceptions set forth in § 522(d)(ll)(D), or its state law counterparts, in the same narrow fashion. See In re Martinez-Whitford, 199 B.R. 74, 77-78 (Bankr.D.Mass.1996); In re Geis, 66 B.R. 563, 564 (Bankr.N.D.Ga.1986); In re Haga, 48 B.R. 492, 495 (Bankr.E.D.Tenn.1985); In re Territo, 36 B.R. 667, 670-71 (Bankr.E.D.N.Y.1984) (“Territo II”); In re Territo, 32 B.R. 377, 381-82 (Bankr.E.D.N.Y.1983) (“Territo I ”); and In re Lynn, 13 B.R. 361, 362 (Bankr.W.D.Wis.1981). But see In re Marcus, 172 B.R. 502, 505 (Bankr.D.Conn.1994). At the January 16, 1997, hearing, the Debtor provided unrebutted testimony that the nature of his injuries arising out of the accident in question were very serious bodily injuries, some of" }, { "docid": "3533407", "title": "", "text": "from the exemption. With respect to 11 U.S.C. § 522(d)(ll)(D), the federal counterpart to Ohio’s personal injury exemption, one bankruptcy judge considered this exact question and concluded that: If read literally, it could be reasonably concluded from the plain language of the statute that there exists no meaningful exemption for personal injuries, because if actual pecuniary loss and pain and suffering are excluded from exempt status, as the statute seems to say, there is really nothing left. As least one other bankruptcy court has reached such a conclusion and has determined that this could not have been the intention of Congress. Matter of Lynn, 13 B.R. 361 (Bankr.W.D.Wis.1981). In re Territo, 36 B.R. 667, 670 (Bankr.E.D.N.Y.1984). Thus, given that Congress clearly did not intend to provide a useless exemption, the court in Territo concluded that a Debtor should be allowed the exemption merely upon a showing that the Debt- or has suffered an actual bodily injury. The court required no further evidence, and absent a contrary showing by the Trustee, the Debtor’s characterization of the award was accepted. See also In re Johnson, 108 B.R. 240, 244 (Bankr.D.N.D.1989) (“While actual personal bodily injury ... is not defined by the Code, the Debtor’s injuries must be substantial enough to qualify as a personal injury.... The parties have agreed that [the debtor] suffered a bodily injury which was serious enough to attribute $7,500.00 of compensation. Absent a clear definition under the Bankruptcy Code this court will accept that the injury was both personal and serious.”). The position that the exemption was intended to include only compensation for actual personal bodily injuries is supported by the federal statute’s legislative history. The House Report indicates that the provision is designed to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompa ny such a loss, such as medical payments, pain and suffering, or loss of earnings. H.R.Rep. No. 595, 95th Cong. 1st Sess. 362, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6318. In summary, although the" }, { "docid": "3533399", "title": "", "text": "past and future wages, loss of consortium, etc.). Who has the initial burden of proving which parts of the award represent compensation for the various exempt and non-exempt categories is the question of law before this Court. When a party objects to a debt- or’s claim of exemption, it is the burden of the objecting party to prove that the exemption is not properly claimed. Bankruptcy Rule 4003(c). This burden is satisfied where the objecting party introduces evidence which rebuts the “•prima facie effect of the claim of exemption.” In re Hollar, 79 B.R. 294 (Bankr.S.D.Ohio 1987) (Sellers, J.). Such a rebuttal shifts the burden to the debtor to demonstrate that the exemption is proper. In the action before this Court, the Debtor claimed $5,000 of the malpractice settlement as exempt under Ohio Rev. Code § 2329.66(A)(12)(C). Thus, it is her implied contention that at least $5,000 of the settlement represents an award other than for pain and suffering or actual pecuniary loss, which are both specifically nonexempt under the Ohio statute. The Trustee claims, and the bankruptcy court agreed, that although the Trustee ultimately has the burden of proof with respect to any objections filed by the Trustee, the Ohio statute requires the Debtor to allocate any amounts received in a personal injury settlement into its various component parts — such as pain and suffering, loss of consortium, actual pecuniary loss, etc. This requirement, the Trustee claims, enables him to decide whether to object to a claimed exemption as compensation for pain and suffering or actual pecuniary loss, and therefore non-exempt under Ohio Rev. Code § 2329.66(A)(12)(c). Initially, this Court must disagree with the bankruptcy court’s conclusion that the Trustee, as the objecting party, “met his initial burden of demonstrating that the Debtor’s claimed exemption is inappropriate by showing that the Debtors failed to allocate the award to show that any payments were for personal bodily injury.” In re Lester, 124 B.R. 63, 65 (Bankr.S.D.Ohio 1990). Such a holding imputes to the debt- or an obligation that simply does not exist, and fails to require the Trustee to meet" }, { "docid": "3533406", "title": "", "text": "in the face of a reasonable claim and the absence of any evidence to the contrary, the burdened party must lose. Thus, the only unresolved question before the Court is whether the Debtors have asserted an exemption that reasonably falls within Ohio Rev.Code § 2329.-66(A)(12)(c). As with all exemption statutes, it must be liberally construed in favor of the debtor. Matter of Young, 93 B.R. 590 (Bankr.S.D.Ohio 1988). While this final determination may initially appear to be without difficulty, the poorly-chosen words that comprise § 2329.-66(A)(12)(c) transform this task into one of needless intricacy. The statute expressly excludes from exemption both compensation for “pain and suffering” and compensation for “actual pecuniary loss.” On its face, it only expressly includes within the exemption compensation received on account of “personal bodily injury.” Unfortunately, no definition is provided in the statute for any of these terms, and Ohio’s courts have not clarified the issue. Initially, this Court is left wondering what the legislature intended to be exempt when both pain and suffering and actual pecuniary loss are excluded from the exemption. With respect to 11 U.S.C. § 522(d)(ll)(D), the federal counterpart to Ohio’s personal injury exemption, one bankruptcy judge considered this exact question and concluded that: If read literally, it could be reasonably concluded from the plain language of the statute that there exists no meaningful exemption for personal injuries, because if actual pecuniary loss and pain and suffering are excluded from exempt status, as the statute seems to say, there is really nothing left. As least one other bankruptcy court has reached such a conclusion and has determined that this could not have been the intention of Congress. Matter of Lynn, 13 B.R. 361 (Bankr.W.D.Wis.1981). In re Territo, 36 B.R. 667, 670 (Bankr.E.D.N.Y.1984). Thus, given that Congress clearly did not intend to provide a useless exemption, the court in Territo concluded that a Debtor should be allowed the exemption merely upon a showing that the Debt- or has suffered an actual bodily injury. The court required no further evidence, and absent a contrary showing by the Trustee, the Debtor’s characterization of the" }, { "docid": "19281500", "title": "", "text": "that § 522(d)(ll)(D) was designed to prevent exemptions based solely on pain and suffering, unaccompanied by a bodily injury. See In re Ciotta, 222 B.R. at 632. Case law also suggests that § 522(d)(ll)(D) applies to exempt awards or settlements arising from personal injuries accompanied by emotional trauma. See id. at 632-33 (“The fact that an injury is accompanied by a large amount of pain and suffering should not prevent a debtor from claiming the exemption.”). Therefore the key to understanding and applying § 522(d)(ll)(D) is defining “personal bodily injury,” as that term is used in the statute. The statute, unfortunately, fails to provide such a definition. Case law, however, suggests that in order for a debtor to utilize § 522(d)(ll)(D) the debtor must have suffered at least “appreciable” or “cognizable” physical injury. See In re Barner, 239 B.R. 139, 142 (Bankr.W.D.Ky.1999); In re Ciotta, 222 B.R. at 633. Damages for loss of a limb, physical disability, bone fractures and dislocations, and loss of consortium have all qualified for exempt status under the statute. See In re Lester, 141 B.R. 157, 157 (S.D.Ohio 1991); In re Territo, 36 B.R. at 669-670; In re Blizard, 81 B.R. 431 (Bankr.W.D.Ky.1988); In re Lynn, 13 B.R. at 361. In this case, the Debtor alleges that he suffered injury when his treating physician inadvertently injected a needle into his spine. Debtor’s injuries included, among other things, loss of movement of his arms and legs and headaches. Debt- or’s malpractice attorney supports these allegations. (Certification of Paul Faugno, Esq. ¶ 1.) This Court finds the Debtor’s injuries more than sufficient to meet the above referenced “appreciable” or “cognizable” physical injury test. In opposition, the Trustee argues that the Debtor endured only pain and suffering as a result of the medical malpractice, not physical injury. She claims that “not one of the injuries identified therein was ... connected to this ... medial malpractice.” (Certification of Barbara A. Edwards ¶ 15.) The Trustee, however, fails to support this statement with any evidence. In fact, the Trustee admits to reviewing medical reports which indicate the faulty injection caused" }, { "docid": "3533400", "title": "", "text": "and the bankruptcy court agreed, that although the Trustee ultimately has the burden of proof with respect to any objections filed by the Trustee, the Ohio statute requires the Debtor to allocate any amounts received in a personal injury settlement into its various component parts — such as pain and suffering, loss of consortium, actual pecuniary loss, etc. This requirement, the Trustee claims, enables him to decide whether to object to a claimed exemption as compensation for pain and suffering or actual pecuniary loss, and therefore non-exempt under Ohio Rev. Code § 2329.66(A)(12)(c). Initially, this Court must disagree with the bankruptcy court’s conclusion that the Trustee, as the objecting party, “met his initial burden of demonstrating that the Debtor’s claimed exemption is inappropriate by showing that the Debtors failed to allocate the award to show that any payments were for personal bodily injury.” In re Lester, 124 B.R. 63, 65 (Bankr.S.D.Ohio 1990). Such a holding imputes to the debt- or an obligation that simply does not exist, and fails to require the Trustee to meet his burden of producing evidence in support of his objection. Simply put, the Trustee does not satisfy his burden merely by pointing to the Debtor’s failure to allocate the settlement into its component parts, and § 2329.66(A)(12)(c) does not require otherwise. Indeed, a state cannot shift the burden of proof in a manner inconsistent with Bankruptcy Rule 4003(c). While the Bankruptcy Code allows states to opt out of the federal exemption scheme and create an alternative list of exemptions, the Code does not in any manner provide a state with the ability to override the procedural requirements of Rule 4003(c). See, e.g., 5 Fed.Proc., L.Ed. § 9:368 (“Although a state may enact its own bankruptcy exemption laws, there is no specific authority for states to enact laws beyond selecting the debtor exemption entitlement ... ”). Thus, to the extent the bankruptcy court below placed upon the Debtor the burden of proving the allocation of her personal injury settlement into the various exempt and non-exempt categories, that decision was erroneous and is reversed. Rather, the interplay" }, { "docid": "18797364", "title": "", "text": "Court believes that the language of the House Report, upon which the Phillips and Simon courts’ interpretation is premised, is not meant to modify the future earnings exemption of § 522(d)(ll)(E). A more logical reading of the House Report would indicate that the foregoing language of the report refers to § 522(d)(ll)(D) of the Code (which exempts certain payments on account of bodily injury) as opposed to the future earnings exemption set forth in § 522(d)(ll)(E). Finally, as a matter of policy, the Court believes that the interpretation of the earnings exemption advocated by the Trustee is unduly restrictive. The Court can conceive of no societal interest which would be served by permitting a debtor to exempt compensation for lost future earnings caused by bodily injury but denying the benefit of the exemption to other debtors whose loss of earnings results from a wrongful act that does not inflict actual harm to their person {e.g., retaliatory discharge, breach of contract, etc.). See, In re Forbes, 58 B.R. 706 (Bankr.S.D.Fla.1986) (holding that a wrongfully discharged debtor could have exempted portion of a settlement representing recovery of wages pursuant to § 522(d)(ll)(E) had he not concealed the cause of action in violation of 11 U.S.C. § 522(g)(1)(B)). The Court, therefore, holds that O.R.C. § 2329.66(A)(12)(d) does operate to exempt that portion of the Settlement, if any, which is attributable to compensation for the Debtor’s lost future wages. The difficulty facing the Court in applying the lost earnings exemption in the present case is that the Settlement is in lump-sum form. Several bankruptcy courts, confronted with similar factual situations, have undertaken the task of apportioning a lump-sum payment (either a lump-sum settlement or an award based upon a general jury verdict) between various exempt and non-exempt categories of damages. See, e.g., In re Haga, 48 B.R. 492 (Bankr.E.D.Tenn.1985) (allocating a portion of general jury award to compensation for actual bodily injury and loss of future wages, both of which were exempt under both Tennessee and federal law); In re Territo, 36 B.R. 667, 670-71 (Bankr.E.D.N.Y.1984) (although settlement failed to specify an allocation between" } ]

[ { "docid": "12914965", "title": "", "text": "Jimmy, Eva and the appellant moved into the house. In that house Eva and Beverly worked as prostitutes, and Eva “would give her money to her man.” After a few months at that loca tion Eva was then brought to another location by appellant and she worked there as a prostitute. Appellant did not take the witness stand and no witnesses were presented in his behalf. Appellant’s contention that his trial attorney was incompetent is without merit (appellant is now represented by a different attorney). We have often stated that we will not set aside a conviction on this ground unless trial counsel is “so incompetent or inefficient as to make the trial a farce or a mockery of justice.” Peek v. United States, 321 F.2d 934 (9th Cir. 1963). E. g., Reid v. United States, 334 F.2d 915 (9th Cir. 1964); Bouchard v. United States, 344 F.2d 872 (9th Cir. 1965). Trial counsel cross-examined government witnesses and moved for an acquittal at the close of the government’s case. The fact that testimony prejudicial to the defense was elicited on cross-examination does not demonstrate incompetency. Nor did the absence of witnesses for the defense evidence incompetence. Appellant does not contend that there were witnesses available to testify in his behalf. On this record we can infer only that there were no available witnesses who would aid the defense. Appellant next contends that plain error was committed in the admission into evidence of certain testimony which appellant now claims for the first time to have been irrelevant and prejudicial to the defense. It would serve no useful purpose for us to discuss each item of evidence which appellant claims to have been erroneously admitted. We have examined the record in light of appellant’s claims and find that the evidence in question was properly admitted. Most of the testimony to which objection is now made was relevant. Other testimony which may not have been relevant referred to matters of minor importance and their admission into evidence was not plain error. Appellant also argues that the sentencing judge, Judge C. A. Muecke, who" } ]

[ { "docid": "6377616", "title": "", "text": "States v. Vivero, 465 F.2d 141 (9th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 304 (1972); United States v. Garrett, 457 F.2d 1311 (9th Cir. 1972); Wright v. Craven, 412 F.2d 915 (9th Cir. 1969); Borchert v. United States, 405 F.2d 735 (9th Cir. 1968), cert. denied, 394 U.S. 972, 89 S.Ct. 1466, 22 L.Ed.2d 753 (1969); Bouchard v. United States, 344 F.2d 872 (9th Cir. 1965); Reid v. United States, 334 F.2d 915 (9th Cir. 1964). The more appropriate statement of the applicable standard, which is more in harmony with the development of case law regarding effectiveness of counsel in other circuits, is that adopted by this court in Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962). In Brubaker v. Dickson, supra at 37, this court adopted a standard which had previously been applied by the Fifth Circuit in MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), modified 289 F.2d 928 (5th Cir. 1961), holding that “[d]ue process does not require ‘errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ ” (Emphasis in original). Although references to the farce or mockery standard have survived Brubaker v. Dickson, supra, recent cases have made it clear that notwithstanding such language, to demonstrate ineffective counsel one need only establish that counsel failed to render reasonably effective assistance. Leano v. United States, 457 F.2d 1208, 1209 (9th Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 162, 34 L.Ed.2d 146 (1972); United States v. Miramon, 470 F.2d 1362, 1363 (9th Cir. 1972), cert. denied, 411 U.S. 934, 93 S.Ct. 1909, 36 L.Ed.2d 395 (1973). This is consistent with the view expressed in various ways in other circuits that the farce or mockery standard today is little more than a metaphor indicating that the petitioner has a relatively heavy burden to prove ineffectiveness of counsel. Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609, 610 (1970); McQueen v. Swenson, supra at 214. The view that the farce or mockery language is not to be taken literally is" }, { "docid": "5264329", "title": "", "text": "without merit. The right to choose one’s, attorney is not unlimited and, if in the sound discretion of the court, the attempted exercise of choice is deemed dilatory or otherwise subversive of orderly criminal process, the judge may compel a defendant to proceed with designated counsel. See Nunn v. Wilson, 371 F.2d 113 (9th Cir. 1967); Arellanes v. United States, 353 F.2d 270 (9th Cir. 1965), cert, denied, 385 U.S. 870, 87 S.Ct. 139, 17 L.Ed.2d 97 (1966); Relerford v. United States, 309 F.2d 706 (9th Cir. 1962). It is clear, however, that such representation cannot be coerced in circumstances in which the désignated defense counsel cannot serve competently. See Brubaker v. Dickson, 310 F.2d 30, 37 (9th Cir. 1962). If the requirement of adequate representation has any content whatsoever, it surely must encompass the attorney’s familiarity with all essential aspects of the case. Accepting Lofton’s allegations as true, as we must in the present posture of his case, the newly designated defense counsel consulted with Lofton for only ten minutes prior to trial; moreover, essential documents were not available. The District Court’s examination of the state court record convinced it that the substituted defense attorney rendered competent and effective service. Normally, such an independent review of the transcript and record would provide sufficient basis for a federal court’s denial of habeas relief. Selz v. California, 423 F.2d 702 (9th Cir. 1970). The case at hand, however, significantly ■varies from the typical situation wherein, for example, the propriety of a state court's denial of a motion to suppress can be determined from the record. The required adequacy of counsel, in contrast, can often be determined only after conducting an evidentiary hearing directed to the specific issue. Here, the record is barren of proof that counsel was in fact competent. The most that can be gleaned from the record is that attorney Holt possibly did as well as any attorney could have done when the grave responsibility was suddenly thrust upon him without adequate opportunity for preparation. We thus conclude an evidentiary hearing must be conducted to determine whether Lofton was" }, { "docid": "21469035", "title": "", "text": "inadequate assistance of counsel. Generally sentence will not be vacated on such grounds unless there is a clear showing that the attorney’s conduct was so incompetent as to make the proceeding a farce. Black v. United States, 269 F.2d 38 (Cir. 9, 1958). In order to justify a hearing on such grounds the petition must set out a course of action on the part of counsel which would preclude a fair hearing, and make the resultant proceedings a mockery of justice. Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707 (1958). Dodd v. United States, 321 F.2d 240 (Cir. 9, 1963) lists certain allegations which will not entitle a petitioner to a hearing in this District. “Many of the grounds often asserted to sustain lack of effective assistance of counsel do not justify a hearing or entitle petitioner to relief. Of such character are contentions as to the ‘competence of counsel’ (citation omitted); the ‘quality of a defense’ (citation omitted) ; or ‘matters of counsel’s judgment’ (citations omitted); ‘general statements expressing dissatisfaction with trial results’ (citation omitted), or ‘a matter of trial tactics or strategy’ (citations omitted).” 321 F.2d at 243. Despite the stringent requirements of Black v. United States, supra, it is still possible to allege sufficient specific claims of inadequate assistance to require a hearing, but the allegations of the petition must be viewed in the light of the type of proceeding which resulted in petitioner’s sentence. What is a serious defect in a jury trial is not necessarily so where petitioner has pleaded guilty. Thus in Smith v. United States, 259 F.2d 125 (Cir. 9 1958) petitioner, convicted after trial in district court, claimed that his court appointed counsel was unfamiliar with federal criminal procedure and practice, inexperienced with criminal proceedings in general, and failed to make an adequate investigation of the facts and possible defenses. The district court dismissed the petition without a hearing. On appeal it was held that these allegations required a hearing. Similarly in Brubaker v. Dickson, 310 F.2d 30 (Cir. 9 1962) in a petition for habeas corpus relief from sentence" }, { "docid": "12004309", "title": "", "text": "to the relief sought. The Court concludes there was substantial evidence to support the findings of the District Court, that the findings of no conflict of interest between the appellants was not clearly erroneous, and that appellant Kruehten was not denied due process of law. LACK OF EFFECTIVE ASSISTANCE OF COUNSEL Under this alleged error, appellant urges, in addition to conflict of interest, “Failure of communication” and “Lack of performance”. These points have been included in the discussion herein-above. The issue is not what counsel should have done to constitute the proper representation of Kruehten considering the case in retrospect after the death sentence was imposed, but rather, whether in the circumstances, as viewed at the time the action was taken, did Kruehten receive effective assistance of counsel. “Ineffective assistance” has been held by this Court to mean conduct by counsel as to be “so incompetent as to make the trial ‘a farce or a mockery of justice’,” a representation so ineffective as to be “shocking to the conscience of the Court.” Rivera v. United States, 318 F.2d 606, 608 (9 C.A.1963); Dodd v. United States, 321 F.2d 240, 243 (9 C.A. 1963); Sanchez v. United States, 398 F.2d 799, 800 (9 C.A.1968). In Brubaker v. Dickson, 310 F.2d 30, 37 (9 C.A.1962), this Court said that representation by counsel at a trial required “ * * * ‘effective aid in the preparation and trial of the case.’ “This does not mean that trial counsel’s every mistake in judgment, error in trial strategy, or misconception of law would deprive an accused of a constitutional right. Due process does not require ‘errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ Determining whether the demands of due process were met in such a case as this requires a decision as to whether ‘upon the whole course of the proceedings,’ and in all the attending circumstances, there was a denial of fundamental fairness; * * The United States District Court in Janovic v. Eyman, 276 F.Supp. 862, 867, comments on the issue" }, { "docid": "22297499", "title": "", "text": "relief in a proceeding under 28 U.S.C.A. § 2255. 3. Appellant alleges that he was denied his Sixth Amendment right to effective assistance of counsel. General conclusory allegations to this effect are inadequate as a matter of law, and impose no obligation upon the district court to hold an evidentiary hearing. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The only specifics alleged in appellant’s petition were that his appointed counsel failed to raise the objections which we have considered above, and failed to request a bill of particulars. Assuming that counsel erred in the latter respect and in failing to object to the admission of evidence, more is required to constitute denial of the effective assistance of counsel guaranteed by the Sixth Amendment. This court has repeatedly said that to be sufficient the allegations must disclose a performance by counsel so incompetent as to make the trial “a farce or a mockery of justice.” Stanley v. United States, 239 F.2d 765, 766 (9th Cir. 1956). It is at least clear that “accused persons are not guaranteed counsel who do not make mistakes” (Moore v. United States, 95 U.S.App.D.C. 92, 220 F.2d 198, 199 (D.C.Cir. 1955)); and the allegations of the present petition reveal nothing more than claimed errors by trial counsel of the extent and kind common to all human efforts. 4. Appellant’s brief also contains general allegations that collusion occurred between his counsel and govenment counsel, and that the prosecution knowingly employed perjured testimony. We do not consider these allegations because they initially appeared in papers filed in this court, and because they are only general charges lacking specificity. Since the allegations with which we have thus far dealt were either conclusory, or as a matter of law clearly entitled appellant to no relief under Section 2255, the district court did not commit reversible error in dismissing the petition, as to these allegations, without an evidentiary hearing. See Williams v. United States, 307 F.2d 366 (9th Cir. 1962). We should note, however, that the Supreme Court has recently held that where charges" }, { "docid": "22554587", "title": "", "text": "61 S.Ct. 574, 85 L.Ed. 830 (1941). It has been specifically held that a charge of ineffective assistance by appointed counsel should not be sustained unless it very clearly appears well grounded. Gray v. United States, (1962), 112 U.S.App.D.C. 86, 299 F.2d 467. It has been held that lack of effective representation by counsel means representation so lacking in competence that it becomes the duty of the court or the prosecution to observe it and correct it. Dayton v. United States, (D.C.Cir., 1963), 115 U.S.App.D.C. 341, 319 F.2d 742, cert. den. 375 U.S. 947, 84 S.Ct. 357, 11 L.Ed.2d 277. It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation. Goforth v. United States, (10 Cir., 1963), 314 F.2d 868, cert. den. 374 U.S. 812, 83 S.Ct. 1703, 10 L.Ed.2d 1035; Bouchard v. United States, (9 Cir., 1965), 344 F.2d 872; Lyons v. United States, (9 Cir., 1963), 325 F.2d 370, cert. den. 377 U.S. 696, 84 S.Ct. 1650, 12 L.Ed.2d 738; Rivera v. United States, (9 Cir., 1963), 318 F.2d 606; United States ex rel. Cooper v. Reincke, (2 Cir., 1964), 333 F.2d 608, cert. den. 379 U.S. 909, 85 S.Ct. 205, 13 L.Ed.2d 181; Scott v. United States, (6 Cir., 1964), 334 F.2d 72, cert. den. 379 U.S. 842, 84 S.Ct. 81, 13 L.Ed.2d 48; Lotz v. Sacks, (6 Cir., 1961), 292 F.2d 657; O’Malley v. United States, (6 Cir., 1961), 285 F.2d 733; Nutt v. United States, (10 Cir., 1964), 335 F.2d 817, cert. den. 379 U.S. 909, 85 S.Ct. 203, 13 L.Ed.2d 180; Root v. Cunningham, (4 Cir., 1965), 344 F.2d 1; Peek v. United States, (9 Cir., 1963), 321 F.2d 934, cert. den. 376 U.S. 954, 84 S.Ct. 973, 11 L.Ed. 2d 973. This court has considered lack of" }, { "docid": "23459813", "title": "", "text": "668 (1974). Assuming that the “farce or mockery” standard is appropriate, appellants urge the reexamination of the test and the substitution of a “normal competence” guideline, citing United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174-77 (3d Cir. 1976) (standard not invoked to find counsel ineffective). There is some question, however, as to the standard of review to be employed in light of de Kaplany v. Enomoto, 540 F.2d 975, 987 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977). In de Kaplany, this court identified three alternate standards by which to review the performance of counsel: (1) whether counsel’s performance was “so poor and incompetent as to make the trial a farce or mockery of justice”; (2) “whether the circumstances show a denial of fundamental fairness”; and (3) whether there was a “lack of effective aid in the preparation and trial of the case — lack of counsel likely to render and rendering reasonably effective assistance.” United States v. Lemon, 550 F.2d 467, 473 (9th Cir. 1977), quoting de Kaplany, 540 F.2d at 987. We concluded there that, under each of the standards, the result was the same, without providing a clear holding as to which standard, if any of the three, was proper. We do not find it necessary to analyze the ramifications of the “normal competence” test because we conclude that, as in de Kaplany, the conduct of defense counsel was sufficient under each of the three standards cited there. Compare United States v. Eaglin (9th Cir. 1977) (No. 75-2720, Aug. 10, 1977) (slip op. at 1815-17); Greenfield v. Gunn, 556 F.2d 935, 938 (9th Cir. 1977); Lemon, supra. This court generally declines to question defense trial tactics in retrospect. See, e. g., Eaglin, supra at (slip op. at 1816-17); United States v. Stern, 519 F.2d 521, 524 (9th Cir.), cert. denied, 423 U.S. 1033, 96 S.Ct. 565, 46 L.Ed.2d 407 (1975). Indeed, it would be a conundrum in logic to find counsel ineffective for failing to raise objections at trial to determinations ultimately sustained here on" }, { "docid": "12549519", "title": "", "text": "See Brubaker v. Dickson, 9 Cir. 1962, 310 F.2d 30. Rather counsel was aware of the defense of entrapment, but made, a choice of defenses as a matter of trial strategy. See Wright v. Craven, 9 Cir. 1969, 412 F.2d 915, 918. As the court said in Brubaker v. Dickson, “Due process does not require ‘errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ ” This requires a determination of whether “in all the attending circumstances, there was a denial of fundamental fairness.” 310 F.2d at 37. Appellant has failed to establish any “denial of fundamental fairness” or lack of “effective aid in the preparation and trial of the case.” Affirmed. . While other grounds were alleged in the motion, the lack of effective representation by counsel is the only ground urged on this appeal. . On appeal from the judgment of conviction appellant also claimed error by reason of “lack of effectiveness of trial counsel.” The court concluded that this defense was without merit. The claim of ineffective counsel, however, was not based on the failure to assert the defense of entrapment. It may be noted also that Smith was then represented by the same counsel as in this proceeding. The court complimented counsel for “his diligence and the excellence of his research, briefs and representation of the appellant.” The same may be said with respect to the representation of appellant in this proceeding. . The same judge had presided at Smith’s trial. It is clear from the transcript of the evidence at the trial that there would have been a conflict in the testimony of appellant and the informer. Certainly we are unable to say that the district court erred in discounting Smith’s testimony. See Richardson v. Nelson, 9 Cir. 1971, 444 F.2d 519. . Appellant argues that the statement was inadmissible. It is unnecessary to determine this question. The trial court had denied a pretrial motion to suppress the statement, and appellant’s trial counsel may not be charged with incompetence in relying upon that ruling. ." }, { "docid": "6377615", "title": "", "text": "Amendment rights, some discussion as to the appropriate standard is in order. It has been noted that the standard for judging the effectiveness of counsel in this circuit is ambiguous. United States v. Decoster, No. 72-1283 (D.C.Cir., Oct. 19, 1976), Slip Op. at 10 n.17. Numerous decisions of this circuit have purported to apply the farce or mockery test. However, in almost all such cases, the court actually concluded that the performance of counsel was fully adequate and/or that there had been a choice between trial tactics which at most appeared unwise only with the benefit of hindsight. E. g., United States v. Stern, 519 F.2d 521 (9th Cir. 1975), cert. denied, 423 U.S. 1033, 96 S.Ct. 565, 46 L.Ed.2d 407 (1975); United States v. Ortiz, 488 F.2d 175 (9th Cir. 1973); Mengarelli v. U. S. Marshal, 476 F.2d 617 (9th Cir. 1973); Parker v. United States, 474 F.2d 697 (9th Cir. 1973); United States v. Steed, 465 F.2d 1310 (9th Cir.), cert. denied, 409 U.S. 1078, 93 S.Ct. 697, 34 L.Ed.2d 667 (1972); United States v. Vivero, 465 F.2d 141 (9th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 304 (1972); United States v. Garrett, 457 F.2d 1311 (9th Cir. 1972); Wright v. Craven, 412 F.2d 915 (9th Cir. 1969); Borchert v. United States, 405 F.2d 735 (9th Cir. 1968), cert. denied, 394 U.S. 972, 89 S.Ct. 1466, 22 L.Ed.2d 753 (1969); Bouchard v. United States, 344 F.2d 872 (9th Cir. 1965); Reid v. United States, 334 F.2d 915 (9th Cir. 1964). The more appropriate statement of the applicable standard, which is more in harmony with the development of case law regarding effectiveness of counsel in other circuits, is that adopted by this court in Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962). In Brubaker v. Dickson, supra at 37, this court adopted a standard which had previously been applied by the Fifth Circuit in MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), modified 289 F.2d 928 (5th Cir. 1961), holding that “[d]ue process does not require ‘errorless counsel, and not counsel judged ineffective" }, { "docid": "8663080", "title": "", "text": "that the rule in Escobedo concerning the right to counsel upon request therefor is to operate retroactively only as to those cases in which the trial began after June 22, 1964, the date of that decision. On June 13, 1966, in Miranda v. State of Arizona, and three companion cases, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Supreme Court prescribed requirements that a prisoner be informed of his right to counsel and his right to remain silent. It is held, however, that the requirements were not applicable, retroactively, prior to the date of the Miranda decision. Johnson v. State of New Jersey, supra. Appellant’s conviction became final almost three years prior to the decision in Escobedo, and nearly five years before the guidelines of Miranda were established. The second ground urged by appellant is that he was denied his constitutional right to the effective assistance of counsel. He alleges, generally, that his counsel did not adequately prepare for trial, did not adequately consult with him, failed to call certain witnesses, failed to object to certain statements made by the prosecutor, and imparted confidential information received from appellant to the prosecutor. The allegations are mostly conclusionary. We find nothing in the record to indicate that appellant had a defense to the charges which counsel failed to present, or that appellant was deprived of a fair trial because of the ineffective assistance of counsel. A conviction may not be set aside on the ground of the ineffective assistance of counsel unless trial counsel is “so incompetent or inefficient as to make the trial a farce or a mockery of justice.” Peek v. United States, 321 F.2d 934, 5 A.L.R.3d 802 (9th Cir. 1963). E. g., Reid v. United States, 334 F.2d 915 (9th Cir. 1964); Bouchard v. United States, 344 F.2d 872 (9th Cir. 1965); Thomas v. United States, decided July 19, 1966, 363 F.2d 849 (9th Cir. 1966). The District Court might have permitted amendment and determined upon the basis of more specific allegations, if chosen to be made, the question of whether or not an evidentiary hearing" }, { "docid": "23419225", "title": "", "text": "his trial attorney, as demonstrating the inadequacy of his representation. Defendant did not bring this matter to the attention of the trial court and seek a ruling thereon, either during the course of the trial or on motion for a new trial. Thus he does not complain of any trial court ruling in this regard. Arguments of this kind are ordinarily advanced for the first time in collateral proceedings under 28 U.S.C. § 2255, be cause they usually require the development of facts outside the trial record. Nevertheless, if it was evident during the trial that defendant’s legal representation was so inadequate as obviously to deny him his Sixth Amendment right to counsel, or to deny him a fair trial in the due process sense, the failure of the trial court to take note sua sponte of the problem might constitute plain error which may be considered on direct appeal. Moreover, even absent a plain-error factor, this court has, on occasion, examined such a contention on the merits in an appeal from a conviction, even where no trial court ruling is complained of. See Bouchard v. United States, 344 F.2d 872, 874-875 (9th Cir. 1965); Reid v. United States, 334 F.2d 915, 919 (9th Cir. 1964). We have accordingly elected to examine this contention on the merits and are convinced that defendant’s legal representation at trial was adequate in the constitutional sense. Affirmed. . Defendant failed to meet the requirements of Fed.R.ules Crim.P. 30 by objecting to the trial court’s insanity instructions before the jury retired. Ordinarily this would mean that defendant would be entitled to reversal only if plain error could be shown. However, as we stated recently in United States v. Wanger, 426 F.2d 1360 (9th Cir. 1970): “The appellant did not forfeit his rights under Wade by failing to object to jury instructions which applied the law as it was firmly established prior to Wade x x X” . The trial court’s aside to the jury was: “In other words, very simply stated— you know, lawyers and judges have to take words, words, words to explain something." }, { "docid": "2982399", "title": "", "text": "PER CURIAM: Appellant was convicted and sentenced in 1960 on his plea of guilty to charges of violating sections 209 and 211 of the California Criminal Code. His petition for habeas corpus was based upon the theory that his guilty plea was induced by a confession obtained in violation of the rule of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The district court denied the petition without a hearing on the ground that the Escobedo rule is to be applied prospectively only. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). By allegations appearing for the first time in briefs filed in this court, appellant materially expanded his claim to raise the more general issues of whether his guilty plea was the product of alleged threats and promises and an allegedly coerced confession (see, e. g., Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Chambers v. State of Florida, 309 U.S. 227 n. 2, 60 S.Ct. 472, 84 L.Ed. 716 (1945); White v. Pepersack, 352 F.2d 470, 472 (4th Cir. 1965); Wright v. Dickson, 336 F.2d 878, 882 (9th Cir. 1964) ; Jones v. Cunningham, 297 F.2d 851 (4th Cir. 1962)); and whether he was adequately represented by counsel in the submission of his guilty plea. Wilson v. Reagan, 354 F.2d 45 (9th Cir. 1965); Wright v. Dickson, supra, 336 F.2d at 883; Jones v. Cunningham, 313 F.2d 347 (4th Cir. 1963). As the cited cases indicate, neither of these issues, if adequately alleged and ultimately proven, would be foreclosed by the guilty plea itself. Because the second issue is wholly new and the first is substantially so, we affirm the judgment, but without prejudice to the right of the appellant to renew his present contentions in the district court in a new petition for habeas corpus. See Flemings v. Wilson, 365 F.2d 267 (9th Cir. 1966)." }, { "docid": "22438361", "title": "", "text": "915 (9th Cir. 1969); Dalrymple v. Wilson, 366 F.2d 183,185 (9th Cir. 1966)), or of whether the circumstances show a denial of fundamental fairness (United States v. Stern, supra, at 525; Mengarelli v. United States, 476 F.2d 617, 619 (9th Cir. 1973); Johnson v. Craven, 432 F.2d 418 (9th Cir. 1970)), or of lack of effective aid in the preparation and trial of the case — lack of counsel likely to render and rendering reasonably effective assistance (Leano v. United States, 457 F.2d 1208 (9th Cir. 1972); Brubaker v. Dickson, 310 F.2d 30, 37 (9th Cir. 1962)), the result is the same. Petitioner was not deprived of the effective assistance of counsel. Thus we need not choose between these standards. IV. Effect of Publicity or Right to Fair Trial. Our holding with respect to the effectiveness of petitioner’s state trial counsel foreshadows our views with respect to petitioner’s contention that massive, pervasive, and prejudicial publicity prevented him from receiving a fair trial. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Petitioner appears to recognize the insubstantiality of this argument by failing to press it with any vigor either in the hearing in the district court or in his arguments presented to us. Although the trial of de Kaplany attracted considerable attention from the press, radio, and television, we hold the circumstances surrounding his trial do not reveal the existence of the chaos and subordination of the judicial process to the demands of media representatives that existed in Sheppard v. Maxwell, de Kaplany received a fair trial. AFFIRMED. . In 1963 when de Kaplany was tried, California utilized a trifurcated trial procedure in capital cases where, as in de Kaplany’s case a plea of “not guilty by reason of insanity” was joined to a plea of “not guilty”: (1) the guilt phase; (2) the sanity phase (Cal.Penal Code § 1026); and (3) the penalty phase (Cal.Penal Code § 190.1). . Subsequent to the district court’s hearing denying this petition, petitioner was granted parole by the California Adult Authority. This does not moot the case. See" }, { "docid": "7308710", "title": "", "text": "PER CURIAM: Appellant was convicted of selling heroin in violation of 21 U.S.C. § 174 and of concealing heroin in violation of the same section. He appealed and this court affirmed. United States v. Vargas, 436 F.2d 1280 (9th Cir. 1971). He then instituted this collateral proceeding under 28 U.S.C. § 2255 to vacate and set aside the conviction. The district court denied the section 2255 motion and Vargas appeals. We affirm. On appeal Vargas challenges the legality of his search and arrest. The same issue was presented on Vargas’ direct appeal and was determined adversely to him. He is not entitled to a second review of the same question in this section 2255 proceeding, Murgia v. United States, 448 F.2d 1275 (9th Cir. 1971); Stein v. United States, 390 F.2d 625 (9th Cir. 1968), without a showing of new evidence. He has presented none. Equally without merit is Vargas’ second contention that he was denied his Sixth Amendment right to counsel because his trial counsel and his counsel on his direct appeal were incompetent and did not adequately prepare his defense. The record indicates that both attorneys were vigorous and able in their representation. Vargas has received legal assistance which is anything but “a farce or mockery of justice.” See Borchert v. United States, 405 F.2d 735, 738 (9th Cir. 1968) and Dodd v. United States, 321 F.2d 240, 243 (9th Cir. 1963). Affirmed." }, { "docid": "22297498", "title": "", "text": "in the form of this one would not be vulnerable to attack even on direct appeal from a judgment of conviction. See United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Young v. United States, 109 U.S.App.D.C. 414, 288 F.2d 398 (D.C.Cir. 1961) ; Blumenfield v. United States, 284 F.2d 46, 49-50 (8th Cir. 1960); Young v. United States, 94 U.S. App.D.C. 54, 212 F.2d 236 (D.C.Cir. 1954). 2. Appellant asserts that the failure of the government to call the informer who purchased the marihuana as a witness denied appellant a constitutional right to confront and cross examine his accuser. He also complains that government agents were permitted to testify to statements made by the informer which were inadmissible hearsay. We rejected identical arguments in Cauley v. United States, 294 F.2d 318, 320 (9th Cir. 1961), on the grounds (1) that the government is not required to call all of the witnesses to a crime, and (2) that the erroneous admission of evidence, as such, is not a basis for relief in a proceeding under 28 U.S.C.A. § 2255. 3. Appellant alleges that he was denied his Sixth Amendment right to effective assistance of counsel. General conclusory allegations to this effect are inadequate as a matter of law, and impose no obligation upon the district court to hold an evidentiary hearing. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The only specifics alleged in appellant’s petition were that his appointed counsel failed to raise the objections which we have considered above, and failed to request a bill of particulars. Assuming that counsel erred in the latter respect and in failing to object to the admission of evidence, more is required to constitute denial of the effective assistance of counsel guaranteed by the Sixth Amendment. This court has repeatedly said that to be sufficient the allegations must disclose a performance by counsel so incompetent as to make the trial “a farce or a mockery of justice.” Stanley v. United States, 239 F.2d 765, 766 (9th Cir. 1956). It is at" }, { "docid": "23459812", "title": "", "text": "of the scheme is not essential to completing the crime of conspiracy. The converse, of course, is also true: Conviction on a substantive count will lie without proof of any agreement to commit the crime. In short, evidence showing an agreement is quite different from evidence showing that the plan was carried out. We conclude that the district court did not err in sentencing appellants separately and consecutively on the conspiracy and substantive counts. E. Competence of Counsel Appellants urge that failure to raise the issue of misjoinder of conspiracies below, failure to object to certain evidence, and an alleged general lack of initiative on the part of trial counsel mandate a finding that there was a deprivation of effective representation. Both sides assume that our standard on review of a competency question is whether the quality of representation rendered was so low that the trial became a “farce or mockery of justice.” See United States v. Martin, 489 F.2d 674, 677 (9th Cir. 1973), cert. denied, 417 U.S. 948, 94 S.Ct. 3073, 41 L.Ed.2d 668 (1974). Assuming that the “farce or mockery” standard is appropriate, appellants urge the reexamination of the test and the substitution of a “normal competence” guideline, citing United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174-77 (3d Cir. 1976) (standard not invoked to find counsel ineffective). There is some question, however, as to the standard of review to be employed in light of de Kaplany v. Enomoto, 540 F.2d 975, 987 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977). In de Kaplany, this court identified three alternate standards by which to review the performance of counsel: (1) whether counsel’s performance was “so poor and incompetent as to make the trial a farce or mockery of justice”; (2) “whether the circumstances show a denial of fundamental fairness”; and (3) whether there was a “lack of effective aid in the preparation and trial of the case — lack of counsel likely to render and rendering reasonably effective assistance.” United States v. Lemon, 550 F.2d 467, 473" }, { "docid": "22438360", "title": "", "text": "out that in his opinion a jury selected from Santa Clara County, which sentenced the petitioner to life imprisonment, served the interests of the petitioner better than one from another county. Counsel avers that he believed at the time that such a verdict was more likely in Santa Clara County than elsewhere. There has never been a trial, certainly not one as closely watched as was petitioner’s, with respect to which there have not been arguments between attorneys and others about the strategy adopted by the opposing counsel. So it is in this case. Moreover, it is understandable that one who is convicted, even though execution was avoided, will forever ponder about what might have been had the strategy been different. Our task, however, is to measure the conduct of the petitioner’s counsel against the applicable standard. Whether we use the standard of performance so poor and incompetent as to make the trial a farce or mockery of justice (United States v. Stern, 519 F.2d 521, 524 (9th Cir. 1975); Wright v. Craven, 412 F.2d 915 (9th Cir. 1969); Dalrymple v. Wilson, 366 F.2d 183,185 (9th Cir. 1966)), or of whether the circumstances show a denial of fundamental fairness (United States v. Stern, supra, at 525; Mengarelli v. United States, 476 F.2d 617, 619 (9th Cir. 1973); Johnson v. Craven, 432 F.2d 418 (9th Cir. 1970)), or of lack of effective aid in the preparation and trial of the case — lack of counsel likely to render and rendering reasonably effective assistance (Leano v. United States, 457 F.2d 1208 (9th Cir. 1972); Brubaker v. Dickson, 310 F.2d 30, 37 (9th Cir. 1962)), the result is the same. Petitioner was not deprived of the effective assistance of counsel. Thus we need not choose between these standards. IV. Effect of Publicity or Right to Fair Trial. Our holding with respect to the effectiveness of petitioner’s state trial counsel foreshadows our views with respect to petitioner’s contention that massive, pervasive, and prejudicial publicity prevented him from receiving a fair trial. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600" }, { "docid": "6377617", "title": "", "text": "by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ ” (Emphasis in original). Although references to the farce or mockery standard have survived Brubaker v. Dickson, supra, recent cases have made it clear that notwithstanding such language, to demonstrate ineffective counsel one need only establish that counsel failed to render reasonably effective assistance. Leano v. United States, 457 F.2d 1208, 1209 (9th Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 162, 34 L.Ed.2d 146 (1972); United States v. Miramon, 470 F.2d 1362, 1363 (9th Cir. 1972), cert. denied, 411 U.S. 934, 93 S.Ct. 1909, 36 L.Ed.2d 395 (1973). This is consistent with the view expressed in various ways in other circuits that the farce or mockery standard today is little more than a metaphor indicating that the petitioner has a relatively heavy burden to prove ineffectiveness of counsel. Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609, 610 (1970); McQueen v. Swenson, supra at 214. The view that the farce or mockery language is not to be taken literally is particularly appropriate in this circuit which has never used this standard to affirm convictions where the failures of counsel were as egregious as conducting the defense while: intoxicated (Hudspeth v. McDonald, 120 F.2d 962 (10th Cir. 1941)); or mentally distraught (Andrews v. Robertson, 145 F.2d 101 (5th Cir. 1944)); or sleeping through much of the trial (United States v. Katz, 425 F.2d 928 (2d Cir. 1970)). In summary, the role of the District Court presented under allegations of ineffective assistance of counsel is not to pass upon the merits of the action not taken but to determine whether, under the particular facts and circumstances of the case, trial counsel failed to render reasonably effective assistance. This does not mean that it should second guess reasoned choices between trial tactics nor does it mean that defense counsel, to protect himself against allegations of inadequacy, must make every conceivable motion no matter how remote the possibilities are of success. It is sufficient if he is prepared and conducts the defense with reasonable knowledge and skill with an" }, { "docid": "8663081", "title": "", "text": "object to certain statements made by the prosecutor, and imparted confidential information received from appellant to the prosecutor. The allegations are mostly conclusionary. We find nothing in the record to indicate that appellant had a defense to the charges which counsel failed to present, or that appellant was deprived of a fair trial because of the ineffective assistance of counsel. A conviction may not be set aside on the ground of the ineffective assistance of counsel unless trial counsel is “so incompetent or inefficient as to make the trial a farce or a mockery of justice.” Peek v. United States, 321 F.2d 934, 5 A.L.R.3d 802 (9th Cir. 1963). E. g., Reid v. United States, 334 F.2d 915 (9th Cir. 1964); Bouchard v. United States, 344 F.2d 872 (9th Cir. 1965); Thomas v. United States, decided July 19, 1966, 363 F.2d 849 (9th Cir. 1966). The District Court might have permitted amendment and determined upon the basis of more specific allegations, if chosen to be made, the question of whether or not an evidentiary hearing was required on the issue of adequate representation. Since this was not done, and since appellant’s allegations were so general as to be inadequate, we must affirm. See Brubaker v. Dixon, 310 F.2d 30 (9th Cir. 1962); Wright v. Dickson, 336 F.2d 878 (9th Cir. 1964); Hale v. Wilson, decided August 10, 1966, 364 F.2d 906 (9th Cir. 1966). The order appealed from is affirmed." }, { "docid": "251318", "title": "", "text": "did not show the price at which the records were sold but established that appellant and his partner left town with the assets and money of the company, and thereby accomplished the same result. This claim is without merit. Whether creditors were actually defrauded in Albuquerque or in Los Angeles is totally immaterial. In a prosecution of this type, the Government is not required to prove that anyone was defrauded or that anyone sustained a loss. Farrell v. United States, 321 F.2d 409, 419 (9th Cir. 1963); Bobbroff v. United States, 202 F.2d 389 (9th Cir. 1963); United States v. Andreadis, 366 F.2d 423, 431 (2d Cir. 1966). When a defendant is put on trial for one offense, evidence of a distinct offense unconnected with that charged in the indictment is not admissible. Exceptions to this rule are so numerous that it is difficult to determine which is the more extensive, the doctrine or the acknowledged exceptions. Davis v. United States, 370 F.2d 310 (9th Cir. 1966). Among the exceptions recognized by this court is one which permits evidence of wrongful acts where such evidence bears on criminal intent. Davis v. United States, supra, and cases cited therein; Stewart v. United States, 311 F.2d 109, 112 (9th Cir. 1962); Fernandez v. United States, 329 F.2d 899, 908 (9th Cir. 1964); Reid v. United States, 334 F.2d 915, 918 (9th Cir. 1964); Head v. United States, 346 F.2d 194, 197 (9th Cir. 1965); Reed v. United States, 364 F.2d 630, 633 (9th Cir. 1966); Hernandez v. United States, 370 F.2d 171, 173 (9th Cir. 1966); Chandler v. United States, 378 F.2d 906, 908 (9th Cir. 1967); Amsler v. United States, 381 F.2d 37, 52 (9th Cir. 1967). In federal courts, trial judges have a measure of discretion in allowing testimony which discloses the purpose, knowledge or intent of a particular person. Glasser v. United States, 315 U.S. 60, 81, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Hernandez v. United States, supra. The testimony was unquestionably relevant on the issue of intent. Its importance to the Government outweighs by far any possible" } ]

[ { "docid": "13463516", "title": "", "text": "9 L.Ed.2d 1, 2 (1962); In re Sanford Fork & Tool CO., 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414, 416 (1895). . 28 U.S.C. § 2282 (1970). . 28 U.S.C. § 2284(1) (1970). . 28 U.S.C. § 2284(4) (1970). . Svejkovsky v. Tamm, supra note 28, 117 U.S.App.D.C. at 115, 326 F.2d at 658. . Nixon v. Richey, supra note 1, 168 U.S.App D.C. -, 513 F.2d at 430. . See note 18, supra. . See note 18, supra. . See note 18, supra. . Nixon v. Richey, supra note 1, 168 U.S.App. D.C. at -, 513 F.2d at 429. . See note 18, supra. . See note 18, supra. . See note 18, supra. . See note 18, supra. . Nixon v. Richey, supra note 1, 168 U.S.App. D.C. at -, 513 F.2d at 429-430. . See text supra at notes 22-24. . See note 22, supra. . See generally IB J. Moore, Federal Practice HH 0.441 et seq. (1974). . Under the doctrine of collateral estoppel, a final judgment in a prior suit precludes reliti-gation of material issues decided therein. Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 99 L.Ed. 1122 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122, 1127 (1955); Partmar Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89, 91, 74 S.Ct. 414, 416, 98 L.Ed. 532, 537 (1954); Southern Pac. R. R. v. United States, 168 U.S. 1, 48-49, 18 S.Ct. 18, 27, 42 L.Ed. 355, 377 (1897). The federal rule is that pendency of an appeal does not suspend the operation of a final judgment for purposes of collateral estoppel, except where appellate review constitutes a trial de novo. Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 188-189, 61 S.Ct. 513, 515, 85 L.Ed. 725, 729 (1941); Reed v. Allen, 286 U.S. 191, 199, 52 S.Ct. 532, 533, 76 L.Ed. 1054, 1057 (1932); 1B J. Moore, Federal Practice fl 0.416[3], at 2252 (1974). The majority of the states follow the same rule. See Denham v. Shellman Grain Elevator, Inc., 444" } ]

[ { "docid": "23139215", "title": "", "text": "83 L.Ed. 104 (1938). . Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Cromwell v. County of Sac, 94 U.S. (1 Wall.) 351, 24 L.Ed. 195 (1877). See 1B J. Moore, Federal Practice ¶ ¶ 0.401, 0.410, 0.441. . 371 F.Supp. 653 (E.D.La.1974) and cases cited therein. O’Quin, Res Judicata — “Matters Which Might Have Been Pleaded,” 2 La.L.Rev. 347 (1940). . International Paper Co. v. Maddox, 203 F.2d 88 (5th Cir. 1953), cited in Wright Root Beer Co. v. Dr. Pepper Co., 414 F.2d 887 (5th Cir. 1969). See O’Quin, supra note 15. . Wright Root Beer, supra note 16; Exhibitors Poster Exch., Inc. v. National Screen Serv. Corp., 421 F.2d 1313 (5th Cir. 1970) (antitrust). . A review of the doctrine of judicial estoppel also supports the district court result. . 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Heiser v. Woodruff, 327 U.S. 726, 66 S.Ct. 853, 90 L.Ed. 970 (1946) (bankruptcy); Wright Root Beer Co. v. Dr. Pepper Co., 414 F.2d 887 (5th Cir. 1969). . Heiser, supra note 19; Exhibitors Poster, supra note 17. . 421 F.2d 1313 (5th Cir. 1970). . Id. at 1316. . Nevertheless, collateral estoppel may effectively preclude new litigation of isolated factual issues already determined elsewhere. . Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122 (1955); Exhibitors Poster, supra note 17. . Wasoff v. American Automobile Ins. Co., 451 F.2d 767 (5th Cir. 1969); DeHart v. Richfield Oil Corp., 395 F.2d 345 (9th Cir. 1968). . 451 F.2d at 769, quoting Seaboard Coast Line R. Co. v. Gulf Oil Corp., 409 F.2d 879, 881 (5th Cir. 1969). Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 (1926). . See DeHart v. Richfield Oil Corp., 395 F.2d 345 (9th Cir. 1968) (the court must examine precisely what was decided between the parties); Falk v. United States, 375 F.2d 561 (6th Cir. 1967). See generally IB J. Moore, Federal Practice H 410[1]. By contrast, in Wasoff," }, { "docid": "884499", "title": "", "text": "U.S. App.D.C. 14, 20, 360 F.2d 829, 835 (1966). . United States v. Brewster, supra note 7, 165 U.S.App.D.C. at 5, 506 F.2d at 66. . United States v. Fox, 140 U.S.App.D.C. 129, 132, 433 F.2d 1235, 1238 (1970), and cases there cited. . United States v. Brewster, supra note 7, 165 U.S.App.D.C. at 10, 506 F.2d at 71; United States v. Michelson, 165 F.2d 732, 733 (2d Cir.), aff'd, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). See also Egan v. United States, 52 App.D.C. 384, 388, 287 F. 958, 962 (1923). . United States v. Hall, 245 F.2d 338, 339 (2d Cir. 1957); Wilson v. United States, 230 F.2d 521, 526 (4th Cir.), cert. denied, 351 U.S. 931, 76f. 1956). . United States v. Brewster, supra note 7, 165 U.S.App.D.C. at 10-12, 506 F.2d at 71-73. . See note 59, supra. . Brief for Appellant at 42. . Ingram v. United States, 122 U.S.App. D.C. 334, 335, 353 F.2d 872, 873 (1965), quoting Prince v. United States, 352 U.S. 322, 327, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). See also cases cited infra notes 141, 149. . As to multiple convictions, see United States v. Maude, 156 U.S.App.D.C. 378, 393, 481 F.2d 1062, 1077 (1973); United States v. Alexander, 152 U.S.App.D.C. 371, 379, 471 F.2d 923, 931, cert. denied, 409 U.S. 1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1972). As to consecutive sentences, see Heflin v. United States, 358 U.S. 415, 419-420, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Ladner v. United States, 358 U.S. 169, 177-178, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); Bell v. United States, 349 U.S. 81, 82-83, 75 S.Ct. 620, 99 L.Ed. 905 (1955). When the legislative will is obscure, other canons come into play. E. g., Bell v. United States, supra, 349 U.S. at 84, 75 S.Ct. 620. We do not reach the latter in this case. . Act of Oct. 23, 1962, added Pub.L. No. 87 — 849, 76 Stat. 1119. In respects not material to this case, the statute was amended by Act of Sept. 22, 1970, Pub.L." }, { "docid": "12730149", "title": "", "text": "comprehensive discussion, see Rosendorf v. Toomey, 349 A.2d 694, 697 (D.C. App.1975). . In the beginning, it seems, checks for Mr. Rosendorf’s maintenance were made payable to him. Illness in 1967 left him severely incapacitated, and during the remainder of the conservatorship checks for that purpose were made payable to Ms. Rosendorf, in addition to those to her for her own maintenance. See note 4 supra. . National Savings and Trust Company and Alvin L. Newmyer, Jr. . The executors’ amended complaint seeks recovery of the monies allegedly converted, impression of a constructive trust on such as she may have retained, and punitive damages. Joint Appendix (J.App.) 5, 6. . In re Rosendorf, Civ. No. 2293-65 (D.C.Super.Ct. July 12, 1973) (unreported), J.App. 86, aff’d sub nom. Rosendorf v. Toomey, supra note 4. . National Savs. & Trust Co. v. Rosendorf, Civ. No. 1193-72 (D.D.C. Dec. 20, 1973) (unreported), J.App. 1. . Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122, 1127 (1955); Partmar Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89, 91, 74 S.Ct. 414, 416, 98 L.Ed. 532, 537 (1954); Nixon v. Richey, 168 U.S.App.D.C. 172, 180 n.75, 513 F.2d 430, 438 n.75 (1975); Stebbins v. Keystone Ins. Co., 156 U.S.App.D.C. 326, 331, 481 F.2d 501, 506 (1973). . See note 26 infra. . Lawlor v. National Screen Serv. Corp., supra note 10, 349 U.S. at 326, 75 S.Ct. at 867, 99 L.Ed. at 1127; Stebbins v. Keystone Ins. Co., supra note 10, 156 U.S.App.D.C. at 331, 481 F.2d at 506; Pippin v. United States, 74 App.D.C. 131, 132, 121 F.2d 98, 99 (1941); Bijur v. Kennington, 51 App.D.C. 230, 232, 278 F. 313, 315 (1922). . Stebbins v. Keystone Ins. Co., supra note 10, 156 U.S.App.D.C. at 331, 481 F.2d at 506; Pippin v. United States, supra note 12, 74 App. D.C. at 132, 121 F.2d at 99; In re Curtiss, 46 App.D.C. 183, 189 (1917). . Stebbins v. Keystone Ins. Co., supra note 10, 156 U.S.App.D.C. at 331, 481 F.2d at 506; Eastern Foundation Co. v. Creswell, 154" }, { "docid": "17269461", "title": "", "text": "Draft No. 1, 1973); Weissinger v. United States, 423 F.2d 795 (5th Cir. 1970). Had Stebbins not aborted the trial in his efforts to test the statutory procedures, one lawsuit could well have been sufficient to thoroughly air his grievances. We do not believe that the burden of a new trial should be placed upon Nationwide when the fault rests wholly upon Stebbins’ shoulders. For the reasons stated above, the decision of the district court is affirmed. Affirmed. . This action is one of nearly a dozen that Stebbins has been juggling since 1966. Several years ago he launched a new career — suing insurance companies that declined to hire him as a claims adjuster. He has brought actions against no less than six companies in this and the District of Columbia Circuits and has testified that he plans to obtain conflicts between various courts, ultimately to have the pleasure of arguing in the Supreme Court of the United States. See Stebbins v. Keystone Insurance Co., 156 U.S.App.D.C. 326, 481 F.2d 501 at n. 4 (1973). . This same effect was given to Judge Pratt’s finding by Judge Gesell in Stebbins v. Keystone Insurance Co., No. 3588-69 (D.D.C. July 8, 1970) and Stebbins v. INA (II), No. 2036-70 (D.D.C. Nov. 1970). The District of Columbia Circuit subsequently held this to be an improper application of the doctrine of collateral estoppel because Judge Pratt’s finding of unemployability was an alternate holding to the stronger rationale that Stebbins had not applied to INA. Stebbins v. Keystone Insurance Co., 156 U.S.App.D.C. 326, 481 F.2d 501 (1973). . Subsequent to our affirmance of the earlier suit, the District of Columbia Circuit held that Judge Pratt’s decision was not entitled to collateral estoppel effect. See note 2 supra. . Our earlier opinion noted that, in related litigation, Stebbins had demonstrated an “ ‘intentional, wilful and contemptuous’ disregard of both Court and statutory rules and requirements.” Stebbins v. Nationwide Mutual Insurance Company, 469 F.2d 268, 270 (4th Cir. 1970) quoting from Stebbins v. State Farm Mutual Automobile Insurance Company, 134 U.S.App.D.C. 193, 413 F.2d 1100 (1969)." }, { "docid": "12730152", "title": "", "text": "As summarized by the Superior Court, the arguments were that “(a) certain of the disbursements intended to benefit the ward were made through checks payable to Mollie Rosendorf, his wife; (b) certain checks made payable to the ward were not endorsed by him; and (c) Mollie Rosendorf either deposited checks in her personal account under the control only of herself and a daughter by a former marriage (Patricia Deutschman), and/or the proceeds of cashed checks were placed by Mollie Rosendorf in her safe deposit box which was similarly controlled.” In re Rosendorf, supra note 8, J.App. 88. . Id., J.App. 88-92. . Id., J.App. 92. . Id., J.App. 92. The reference to the litigation at bar is obvious. . Id., J.App. 92. . Rosendorf v. Toomey, supra note 4, 349 A.2d at 698-700. . Id., at 701 n.8. . National Savs. & Trust Co. v. Rosendorf, supra note 9, J.App. 1. . Id, J.App. 2-3. . The rule of res judicata applies only to new litigation between the same parties or privies on the same cause of action. Lawlor v. National Screen Serv. Corp., supra note 10, 349 U.S. at 326, 75 S.Ct. at 867, 99 L.Ed. at 1126; United States v. Munsingwear, Inc., 340 U.S. 36, 38, 71 S.Ct. 104, 105-106, 95 L.Ed. 36, 40 (1950); Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898, 905-906 (1948). Compare note 10 supra. When operable, unlike collateral estoppel, res judicata concludes not only issues decided but also those which could have been raised and decided in the earlier proceeding. Tutt v. Doby, 148 U.S.App.D.C. 171, 173, 459 F.2d 1195, 1197 (1972); Brotherhood of R.R. Trainmen v. Atlantic Coastline R.R.., 127 U.S.App.D.C. 298, 300, 383 F.2d 225, 227 (1967), cert. denied, 389 U.S. 1047, 88 S.Ct. 790, 19 L.Ed.2d 839 (1968); Calvin v. Calvin, 94 U.S.App.D.C. 42, 44, 214 F.2d 226, 228 (1954); Knutson v. Gallsworthy, 82 U.S.App.D.C. 304, 308, 164 F.2d 497, 501 (1947). Compare notes 12-14 supra. Here, however, both the parties and the claims differ significantly. See text infra at notes 29-33. . We" }, { "docid": "7379407", "title": "", "text": "Corporation v. Northwest Bldg. Co., 1931, 164 Wash. 603, 4 P.2d 507, 79 A.L.R. 651; Fowler v. Mumford, 1954, 9 Terry 282, 48 Del. 282, 102 A.2d 535; Ensign v. Home for Jewish Aged, Mo.App.1955, 274 S.W. 2d 502; Hazelhurst Oil Mill & Fertilizer Co. v. United States, 42 F.2d 331, 70 Ct.Cl. 334; Freund v. United States, 1922, 260 U.S. 60, 43 S.Ct. 70, 67 L.Ed. 131; Kilpatrick v. Germania Life Ins. Co., 183 N.Y. 163, 75 N.E. 1124, 2 L.R.A.,N.S., 574; Vandyke v. Wood, 60 App.Div. 208, 70 N.Y.S. 324; Brown v. Worthington, 1912, 162 Mo.App. 508, 142 S.W. 1082; Pittsburgh Steel Co. v. Hollingshead, 1916, 202 Ill.App. 177; Harris v. Cary, 1911, 112 Va. 362, 71 S.E. 551; 47 H.L.R. 1413; Williston on Contracts Sec. 1603 pp. 4495, 4496, Sec. 1617; United States v. Old Settlers, 1892, 148 U.S. 427, 13 S.Ct. 650, 37 L.Ed. 509; United States v. Child & Co., 1870, 12 Wall. 232, 20 L.Ed. 360; Automatic Radio Manufacturing Co. v. Hazeltine Research, 1 Cir., 1948, 176 F.2d 799, 804, affirmed 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312, rehearing denied 340 U.S. 846, 71 S.Ct. 13, 95 L.Ed. 620; Shipley v. Pittsburgh & L. E. R. Co., D.C.W.D. Pa. 1949, 83 F.Supp. 722, 762; Lawlor, v. National Screen Service Corp., 3 Cir., 1954, 211 F.2d 934, reversed on other grounds, 1955, 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122, 1123; Lawrence v. Muter Co., 7 Cir., 1948, 171 F.2d 380, 382, certiorari denied Metropolitan Trust Co. v. Muter Co., 337 U.S. 907, 69 S.Ct. 1049, 93 L.Ed. 1720; Frukauf Southwest Garment Co. v. United States, 1953, 111 F.Supp. 945, 951, 126 Ct.Cl. 51; Barnette v. Wells Fargo Nevada Nat. Bank, 270 U.S. 438, 46 S.Ct. 326, 70 L.Ed. 669; Meyer v. Guardian Trust Co., 8 Cir., 296 F. 789, 35 A.L.R. 856; Sanche v. Electrolibration, 4 App.D.C. 453; Northern Pac. Ry. Co. v. United States, D.C.Minn. 3rd Div.1946, 70 F. Supp. 836, affirmed 8 Cir., 188 F.2d 277. 17 Am.Juris. Sec. 177, p. 892; 17 Am. Juris. Sec. 25, p. 903;" }, { "docid": "3296281", "title": "", "text": "3, 501 F.2d at 881-882 n. 3; Marusa v. District of Columbia, 157 U.S.App.D.C. 348, 353, 484 F.2d 828, 833 (1973); Canterbury v. Spence, 150 U.S.App.D.C. 263, 284, 464 F.2d 772, 793, cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972). . The complaint was filed in the District Court on Aug. 16, 1972. . Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959); Schroeder v. Young, 161 U.S. 334, 344-345, 16 S.Ct. 512, 516, 40 L.Ed. 721, 726-727 (1896); Brown v. Lamb, 134 U.S.App.D.C. 314, 414 F.2d 1210, cert, denied, 397 U.S. 907, 90 S.Ct. 904, 25 L.Ed.2d 88 (1969); Fontana v. Aetna Cas. & Sur. Co., 124 U.S.App.D.C. 168, 170-171, 363 F.2d 297, 299-300 (1966); Howard Univ. v. Cassell, 75 U.S.App.D.C. 75, 79-81, 126 F.2d 6, 10-12 (1941), cert, denied, 316 U.S. 675, 62 S.Ct. 1046, 86 L.Ed. 1749 (1942); Hornblower v. George Washington Univ., 31 App.D.C. 64, 75, 14 Ann.Cas. 696 (1908). . Union Mut. Life Ins. Co. v. Wilkinson, 80 U.S. (13 Wall.) 222, 233, 20 L.Ed. 617, 622-623 (1872). . Hornblower v. George Washington Univ., supra note 26, 31 App.D.C. at 75. . Glus v. Brooklyn E. Dist. Terminal, supra note 26, 359 U.S. at 232, 79 S.Ct. at 762, 3 L.Ed.2d at 772. . Catholic Univ. v. Waggaman, 32 App.D.C. 307, 315-316 (1909); Stern Equip. Co. v. Pogue, 117 A.2d 447, 448 (D.C.Mun.App.1955); Tendler v. L. E. Massey, Inc., 33 A.2d 626, 628 (D.C.Mun.App.1943). . Brown v. Lamb, supra note 26, 134 U.S.App. D.C. at 316 & n. 4, 414 F.2d at 1212 & n. 4; Howard Univ. v. Cassell, supra note 26, 75 U.S.App.D.C. at 81, 126 F.2d at 12; Glennan v. Lincoln Inv. Corp., 71 App.D.C. 365, 366, 110 F.2d 130, 131 (1940); De Luca v. Atlantic Ref. Co., 176 F.2d 421, 423-424 (2d Cir. 1949), cert. denied, 338 U.S. 943, 70 S.Ct. 423, 94 L.Ed. 581 (1950); Aetna Life Ins. Co. v. Moyer, 113 F.2d 974, 981-982 (3rd Cir. 1940). . Complaint, App. 2. . See notes 30-31 supra and accompanying" }, { "docid": "23516155", "title": "", "text": "note 24, 60 App.D.C. at 130-131, 49 F.2d at 512-513. . See 1 F. Wharton, Criminal Evidence § 235 (12th ed. 1955) ; 2 J. Wigmore, Evidence § 416 (3d ed. 1940). . See Eagles v. United States, supra note 24, 58 App.D.C. at 124, 25 F.2d at 548. See also Drew v. United States, supra note 9, 118 U.S.App.D.C. at 16, 331 F.2d at 91, quoted supra note 19; Bracey v. United States, 79 U.S.App.D.C. 23, 25-26, 142 F.2d 85, 88-89, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944). Cf. Martin v. United States, 75 U.S.App.D.C. 399, 400, 127 F.2d 865, 866 (1942). See also the cases cited infra notes 41, 43. . 2 J. Wigmore, Evidence § 416 (3d ed. 1940). . Drew v. United States, supra note 9, 118 U.S.App.D.C. at 15-16, 331 F.2d at 89-90; Harper v. United States, supra note 18, 99 U.S.App.D.C. at 325, 239 F.2d at 946. Compare Luck v. United States, 121 U.S.App.D.C. 151, 156-157, 348 F.2d 763, 768-769 (1965). . Harper v. United States, supra note 18, 99 U.S.App.D.C. at 325, 239 F.2d at 946. . Compare Martin v. United States, supra note 27, with Eagles v. United States, supra note 24, 58 App.D.C. at 124, 25 F.2d at 548. See also Boyd v. United States, 142 U.S. 450, 454-458, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), . See Billings v. United States, 42 App.D.C. 413, 415 (1914), where the defendant’s identity was not in issue. Unlike the situation there, the sole issue in the July 4 count was appellant’s identity as the housebreaker, and that issue was hotly contested. See also notes 36 and 42, infra, and accompanying text. . E. g., Boyd v. United States, supra note 31, 142 U.S. at 458, 12 S.Ct. 292. . The record indicates that appellant, 22 years of age, is only about five feet three inches in height. . See text supra at notes 1, 3. . Thus we further distinguish Billings v. United States, supra note 32. And see the cases cited infra note 42. . People v." }, { "docid": "884498", "title": "", "text": "supra. . E. g., Johnson v. United States, 138 U.S. App.D.C. 174, 178, 426 F.2d 651, 655 (en banc 1970), petition for cert. dismissed, 401 U.S. 846, 91 S.Ct. 1258, 28 L.Ed.2d 523 (1971). . Glasser v. United States, supra note 63, 315 U.S. at 80, 62 S.Ct. 457, 86 L.Ed. 680; Crawford v. United States, 126 U.S.App.D.C. 156, 158, 375 F.2d 332, 334 (1967); Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). . See, e. g., United States v. Egenberg, 441 F.2d 441, 443 (2d Cir.), cert. denied, 404 U.S. 994, 92 S.Ct. 530, 30 L.Ed.2d 546 (1971); United States v. DeAlesandro, 361 F.2d 694, 699 (2d Cir.), cert. denied, 385 U.S. 842, 87 S.Ct. 94, 17 L.Ed.2d 74 (1966). . Compare Nye & Nissen, Inc. v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949); United States v. Lumpkin, 145 U.S.App.D.C. 162, 167, 448 F.2d 1085, 1090 (1971); Long v. United States, 124 U.S. App.D.C. 14, 20, 360 F.2d 829, 835 (1966). . United States v. Brewster, supra note 7, 165 U.S.App.D.C. at 5, 506 F.2d at 66. . United States v. Fox, 140 U.S.App.D.C. 129, 132, 433 F.2d 1235, 1238 (1970), and cases there cited. . United States v. Brewster, supra note 7, 165 U.S.App.D.C. at 10, 506 F.2d at 71; United States v. Michelson, 165 F.2d 732, 733 (2d Cir.), aff'd, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). See also Egan v. United States, 52 App.D.C. 384, 388, 287 F. 958, 962 (1923). . United States v. Hall, 245 F.2d 338, 339 (2d Cir. 1957); Wilson v. United States, 230 F.2d 521, 526 (4th Cir.), cert. denied, 351 U.S. 931, 76f. 1956). . United States v. Brewster, supra note 7, 165 U.S.App.D.C. at 10-12, 506 F.2d at 71-73. . See note 59, supra. . Brief for Appellant at 42. . Ingram v. United States, 122 U.S.App. D.C. 334, 335, 353 F.2d 872, 873 (1965), quoting Prince v. United States, 352 U.S. 322, 327," }, { "docid": "2934951", "title": "", "text": "United States, supra note 9, 440 U.S. at 153, 99 S.Ct. at 973, 59 L.Ed.2d at 217. . On review of an order dismissing an action for failure to state a claim upon which relief can be granted, the allegations of the complaint must be taken as true. E.g., Boykin v. District of Columbia, 223 U.S.App.D.C. 80, 82, 689 F.2d 1092, 1094 (1982); Harper v. McDonald, 220 U.S.App.D.C. 137, 142, 679 F.2d 955, 960 (1982). . See, e.g., Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 327-328, 75 S.Ct. 865, 866, 99 L.Ed. 1122, 1127 (1955) (prior adjudication does not bar similar action based on subsequent acts even if both suits involve \"essentially the same course of wrongful conduct\"); accord, Exhibitors Poster Exchange, Inc. v. National Screen Serv. Corp., 421 F.2d 1313, 1318 (5th Cir.1970), cert. denied, 400 U.S. 991, 91 S.Ct. 454, 27 L.Ed.2d 439 (1971); Cream Top Creamery v. Dean Milk Co., 383 F.2d 358, 363 (6th Cir.1967). Nor is Page collaterally estopped from pressing his negligence theory in this new action. The only issue not open is whether pre-1972 claims are time-barred. See generally Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308, 313 (1980); Montana v. United States, supra note 9, 440 U.S. at 153, 99 S.Ct. at 973, 59 L.Ed.2d at 217. . 28 U.S.C. § 2401(b) (1976). As we have explained, this provision “requires the claimant both to file the claim with the agency within two years after accrual of the claim and then to file a complaint in the District Court within six months after the agency denies the claim.” Schuler v. United States, 202 U.S.App.D.C. 199, 201, 628 F.2d 199, 201 (en banc 1980) (emphasis in original). . Kossick v. United States, 330 F.2d 933, 936 (2d Cir.), cert. denied, 379 U.S. 837, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964); Tyminski v. United States, 481 F.2d 257, 262 (3d Cir.1973); Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir.1980); Wollman v. Gross, 637 F.2d 544, 551 (8th Cir.1980); Reilly v. United States, 513 F.2d 147," }, { "docid": "12730148", "title": "", "text": "Court for further proceedings not inconsistent with this opinion. So ordered. . The relevant events are more fully described in text infra at notes 15-22. . See D.C.Code § 11-522 (Supp. II 1963). The conservatorship began in the United States District Court for the District of Columbia, wherein jurisdiction then resided. Id. § 522. National Savings and Trust Company, the original conservator, was succeeded in 1967 by James C. Toomey as substitute conservator. In 1972, jurisdiction over the conservatorship was statutorily transferred to the Superior Court of the District of Columbia, D.C.Code §§ 11-501, ll-921(a)(5)(A)(vi) (1973), wherein the substitute conservator’s second and final account came on for settlement. See text infra at notes 15-23. . See note 2 supra. . A series of District Court orders authorized periodic disbursements, to specified máximums, for current living expenses of William Rosendorf. The alleged disposition of these monies is central to this lawsuit. Not involved herein are payments separately made to Mollie Rosendorf, William’s wife, which the District Court authorized for her own living expenses. For a more comprehensive discussion, see Rosendorf v. Toomey, 349 A.2d 694, 697 (D.C. App.1975). . In the beginning, it seems, checks for Mr. Rosendorf’s maintenance were made payable to him. Illness in 1967 left him severely incapacitated, and during the remainder of the conservatorship checks for that purpose were made payable to Ms. Rosendorf, in addition to those to her for her own maintenance. See note 4 supra. . National Savings and Trust Company and Alvin L. Newmyer, Jr. . The executors’ amended complaint seeks recovery of the monies allegedly converted, impression of a constructive trust on such as she may have retained, and punitive damages. Joint Appendix (J.App.) 5, 6. . In re Rosendorf, Civ. No. 2293-65 (D.C.Super.Ct. July 12, 1973) (unreported), J.App. 86, aff’d sub nom. Rosendorf v. Toomey, supra note 4. . National Savs. & Trust Co. v. Rosendorf, Civ. No. 1193-72 (D.D.C. Dec. 20, 1973) (unreported), J.App. 1. . Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122, 1127 (1955); Partmar Corp. v. Paramount Pictures" }, { "docid": "2934950", "title": "", "text": "States, Civ. No. 2547-72 (D.D.C.) (order filed May 10, 1973), App. A-1. The order gave no reason for the dismissal, but the memorandum in support of the Government's motion to dismiss identified statutory time barriers as its basis. Addendum to Brief for Appellees (Add.) A-2 to A-6. . Page v. United States, No. 73-1731 (D.C.Cir.) (order filed Sept. 25, 1973), App. A-2. . Page v. United States, supra note 2, (order filed Feb. 24, 1982), Add. A-1. The court noted the 1973 order and stated, without further explanation, that the Government’s arguments on res judicata and the statutory time-limitation were \"meritorious” and cause for dismissal. . Hardison v. Alexander, 211 U.S.App.D.C. 51, 58, 655 F.2d 1281, 1288 (1981). See generally Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 978, 59 L.Ed.2d 210 (1979); Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1232-1233 (2d Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). . Expert Elec., Inc. v. Levine, supra note 9, 554 F.2d at 1234; see also Montana v. United States, supra note 9, 440 U.S. at 153, 99 S.Ct. at 973, 59 L.Ed.2d at 217. . On review of an order dismissing an action for failure to state a claim upon which relief can be granted, the allegations of the complaint must be taken as true. E.g., Boykin v. District of Columbia, 223 U.S.App.D.C. 80, 82, 689 F.2d 1092, 1094 (1982); Harper v. McDonald, 220 U.S.App.D.C. 137, 142, 679 F.2d 955, 960 (1982). . See, e.g., Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 327-328, 75 S.Ct. 865, 866, 99 L.Ed. 1122, 1127 (1955) (prior adjudication does not bar similar action based on subsequent acts even if both suits involve \"essentially the same course of wrongful conduct\"); accord, Exhibitors Poster Exchange, Inc. v. National Screen Serv. Corp., 421 F.2d 1313, 1318 (5th Cir.1970), cert. denied, 400 U.S. 991, 91 S.Ct. 454, 27 L.Ed.2d 439 (1971); Cream Top Creamery v. Dean Milk Co., 383 F.2d 358, 363 (6th Cir.1967). Nor is Page collaterally estopped from pressing his negligence theory in this new action." }, { "docid": "23516154", "title": "", "text": "Baker v. United States, supra note 9, 131 U.S.App.D.C. at 24, 401 F.2d at 975. . See Fall v. United States, 60 App.D.C. 124, 130-131, 49 F.2d 506, 512-513, cert. denied, 283 U.S. 867, 51 S.Ct. 657, 75 L.Ed. 1471 (1931); Eagles v. United States, 58 App.D.C. 122, 124, 25 F.2d 546, 548, cert. denied, 277 U.S. 609, 48 S.Ct. 603, 72 L.Ed. 1013 (1928); McHenry v. United States, 51 App.D.C. 119, 123, 276 F. 761, 765, 34 A.L.R. 1109 (1921). . See Cantrell v. United States, 116 U.S.App.D.C. 311, 312, 323 F.2d 613, 614 (1963), cert. denied, 376 U.S. 955, 84 S.Ct. 973, 11 L.Ed.2d 973 (1964); Harper v. United States, supra note 18, 99 U.S.App.D.C. at 326-327, 239 F.2d at 947-948; Green v. United States, 88 U.S.App.D.C. 249, 188 F.2d 48, cert. denied, 341 U.S. 955, 71 S.Ct. 1008, 95 L.Ed. 1376 (1951); Copeland v. United States, 80 U.S.App.D.C. 308, 309, 152 F.2d 769, 770 (1945), cert. denied, 328 U.S. 841, 66 S.Ct. 1010, 90 L.Ed. 1815 (1946); Fall v. United States, supra note 24, 60 App.D.C. at 130-131, 49 F.2d at 512-513. . See 1 F. Wharton, Criminal Evidence § 235 (12th ed. 1955) ; 2 J. Wigmore, Evidence § 416 (3d ed. 1940). . See Eagles v. United States, supra note 24, 58 App.D.C. at 124, 25 F.2d at 548. See also Drew v. United States, supra note 9, 118 U.S.App.D.C. at 16, 331 F.2d at 91, quoted supra note 19; Bracey v. United States, 79 U.S.App.D.C. 23, 25-26, 142 F.2d 85, 88-89, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944). Cf. Martin v. United States, 75 U.S.App.D.C. 399, 400, 127 F.2d 865, 866 (1942). See also the cases cited infra notes 41, 43. . 2 J. Wigmore, Evidence § 416 (3d ed. 1940). . Drew v. United States, supra note 9, 118 U.S.App.D.C. at 15-16, 331 F.2d at 89-90; Harper v. United States, supra note 18, 99 U.S.App.D.C. at 325, 239 F.2d at 946. Compare Luck v. United States, 121 U.S.App.D.C. 151, 156-157, 348 F.2d 763, 768-769 (1965). . Harper v." }, { "docid": "15790331", "title": "", "text": "such an appendix including those items designated by INA and EEOC which had been omitted from the joint appendix. Stebbins moved on June 22 to vacate this order, but by per curiam order of July 21, 1971, we denied his motion. On July 23, Stebbins moved to require INA and EEOC to pre-pay the costs of printing the supplemental appendix; and on July 29, INA moved to compel Stebbins to file a cost bond. This court on October 15, 1971, issued a per curiam order denying Stebbins’ motion of July 23 and directing him to show cause why the appeal should not be dismissed. On October 12, Stebbins responded to the show cause order by stating, in summary, that he was appealing in forma pauperis and could pay no costs. By per curiam order of December 14, 1971, Stebbins’ reply to the show cause order, appellees’ response thereto, and Stebbins’ supplemental response were referred to the merits division. We resolve the matter by treating the appeal as one in forma pauperis, 28 U.S.C.. § 1915, except as to any fees or costs hitherto paid. . See Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L. Ed. 1122 (1955) ; International Paper Co. v. Maddox, 203 F.2d 88 (5th Cir. 1953). Cf. Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948) ; People ex rel. Watchtower Bible & Tract Soc’y v. Haring, 286 App.Div. 676, 146 N.Y.S.2d 151 (3d Dep’t, 1955). . See Blonder-Tongue Labs., Inc. v. University of Ill. Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) ; Lober v. Moore, supra, 135 U.S.App. D.C. at 148-152, 417 F.2d at 716-720 (and authorities cited therein) ; Smith v. Hood, 130 U.S.App.D.C. 43, 44, 396 F.2d 692, 693 (1968) (There is a “trend towards barring relitigation of an issue by a one-time loser. . . . ”). . See Cromwell v. County of Sac, 94 U.S. (4 Otto) 351, 24 L.Ed. 195 (1877) ; F. James, Civil Procedure § 11.19 (1965) ; Restatement of the Law of Judgments §" }, { "docid": "7379408", "title": "", "text": "804, affirmed 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312, rehearing denied 340 U.S. 846, 71 S.Ct. 13, 95 L.Ed. 620; Shipley v. Pittsburgh & L. E. R. Co., D.C.W.D. Pa. 1949, 83 F.Supp. 722, 762; Lawlor, v. National Screen Service Corp., 3 Cir., 1954, 211 F.2d 934, reversed on other grounds, 1955, 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122, 1123; Lawrence v. Muter Co., 7 Cir., 1948, 171 F.2d 380, 382, certiorari denied Metropolitan Trust Co. v. Muter Co., 337 U.S. 907, 69 S.Ct. 1049, 93 L.Ed. 1720; Frukauf Southwest Garment Co. v. United States, 1953, 111 F.Supp. 945, 951, 126 Ct.Cl. 51; Barnette v. Wells Fargo Nevada Nat. Bank, 270 U.S. 438, 46 S.Ct. 326, 70 L.Ed. 669; Meyer v. Guardian Trust Co., 8 Cir., 296 F. 789, 35 A.L.R. 856; Sanche v. Electrolibration, 4 App.D.C. 453; Northern Pac. Ry. Co. v. United States, D.C.Minn. 3rd Div.1946, 70 F. Supp. 836, affirmed 8 Cir., 188 F.2d 277. 17 Am.Juris. Sec. 177, p. 892; 17 Am. Juris. Sec. 25, p. 903; 17 C.J.S., Contracts, § 172, p. 532. . Sekulow v. 11th & F St. Valet, Inc., 1947, 82 U.S.App.D.C. 244, 162 F.2d 19, 22; Frukauf Southwest Garment Co. v. United States, 1953, 111 F.Supp. 945, 126 Ct.Cl. 51. . Hartsville Oil Mill v. United States, 1926, 271 U.S. 43, 46 S.Ct. 389, 70 L.Ed. 822; But cf. Hazelhurst Oil Mill & Fertilizer Co. v. United States, 42 F.2d 331, 70 Ct.Cl. 334. United States v. Bethlehem Steel Corp., 1941, 315 U.S. 289, 62 S.Ct. 581, 86 L.Ed. 855." }, { "docid": "12730151", "title": "", "text": "U.S.App.D.C. 240, 243, 475 F.2d 351, 354 (1973). . Sidney Rosendorf, Ruth Rosendorf Green-berg Mann and Harvey Rosendorf are his children by a prior marriage and beneficiaries of his estate. With but one possible exception, unimportant for present purposes, see In re Rosendorf, supra note 8, J.App. 86, they fought the battle in the District of Columbia courts. See id., J.App. 86-92; Rosendorf v. Toomey, supra note 4, 349 A.2d at 696. . National Savings and Trust Company had rendered its accounting in, and had obtained its discharge from, the District Court prior to the jurisdictional transfer. The Superior Court, concluding that the objections were untimely as to that conservator, found it unnecessary to determine whether it had power to reopen its accounts. In re Rosendorf, supra, note 8, J.App. 87-88. On appeal, the ruling on timeliness was sustained. Rosendorf v. Toomey, supra note 4, 349 A.2d at 698. . Although the attack focused primarily on the checks payable to Ms. Rosendorf, it encompassed as well the proceeds of checks naming Mr. Rosendorf as payee. As summarized by the Superior Court, the arguments were that “(a) certain of the disbursements intended to benefit the ward were made through checks payable to Mollie Rosendorf, his wife; (b) certain checks made payable to the ward were not endorsed by him; and (c) Mollie Rosendorf either deposited checks in her personal account under the control only of herself and a daughter by a former marriage (Patricia Deutschman), and/or the proceeds of cashed checks were placed by Mollie Rosendorf in her safe deposit box which was similarly controlled.” In re Rosendorf, supra note 8, J.App. 88. . Id., J.App. 88-92. . Id., J.App. 92. . Id., J.App. 92. The reference to the litigation at bar is obvious. . Id., J.App. 92. . Rosendorf v. Toomey, supra note 4, 349 A.2d at 698-700. . Id., at 701 n.8. . National Savs. & Trust Co. v. Rosendorf, supra note 9, J.App. 1. . Id, J.App. 2-3. . The rule of res judicata applies only to new litigation between the same parties or privies on the same" }, { "docid": "12730150", "title": "", "text": "Theatres Corp., 347 U.S. 89, 91, 74 S.Ct. 414, 416, 98 L.Ed. 532, 537 (1954); Nixon v. Richey, 168 U.S.App.D.C. 172, 180 n.75, 513 F.2d 430, 438 n.75 (1975); Stebbins v. Keystone Ins. Co., 156 U.S.App.D.C. 326, 331, 481 F.2d 501, 506 (1973). . See note 26 infra. . Lawlor v. National Screen Serv. Corp., supra note 10, 349 U.S. at 326, 75 S.Ct. at 867, 99 L.Ed. at 1127; Stebbins v. Keystone Ins. Co., supra note 10, 156 U.S.App.D.C. at 331, 481 F.2d at 506; Pippin v. United States, 74 App.D.C. 131, 132, 121 F.2d 98, 99 (1941); Bijur v. Kennington, 51 App.D.C. 230, 232, 278 F. 313, 315 (1922). . Stebbins v. Keystone Ins. Co., supra note 10, 156 U.S.App.D.C. at 331, 481 F.2d at 506; Pippin v. United States, supra note 12, 74 App. D.C. at 132, 121 F.2d at 99; In re Curtiss, 46 App.D.C. 183, 189 (1917). . Stebbins v. Keystone Ins. Co., supra note 10, 156 U.S.App.D.C. at 331, 481 F.2d at 506; Eastern Foundation Co. v. Creswell, 154 U.S.App.D.C. 240, 243, 475 F.2d 351, 354 (1973). . Sidney Rosendorf, Ruth Rosendorf Green-berg Mann and Harvey Rosendorf are his children by a prior marriage and beneficiaries of his estate. With but one possible exception, unimportant for present purposes, see In re Rosendorf, supra note 8, J.App. 86, they fought the battle in the District of Columbia courts. See id., J.App. 86-92; Rosendorf v. Toomey, supra note 4, 349 A.2d at 696. . National Savings and Trust Company had rendered its accounting in, and had obtained its discharge from, the District Court prior to the jurisdictional transfer. The Superior Court, concluding that the objections were untimely as to that conservator, found it unnecessary to determine whether it had power to reopen its accounts. In re Rosendorf, supra, note 8, J.App. 87-88. On appeal, the ruling on timeliness was sustained. Rosendorf v. Toomey, supra note 4, 349 A.2d at 698. . Although the attack focused primarily on the checks payable to Ms. Rosendorf, it encompassed as well the proceeds of checks naming Mr. Rosendorf as payee." }, { "docid": "12730153", "title": "", "text": "cause of action. Lawlor v. National Screen Serv. Corp., supra note 10, 349 U.S. at 326, 75 S.Ct. at 867, 99 L.Ed. at 1126; United States v. Munsingwear, Inc., 340 U.S. 36, 38, 71 S.Ct. 104, 105-106, 95 L.Ed. 36, 40 (1950); Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898, 905-906 (1948). Compare note 10 supra. When operable, unlike collateral estoppel, res judicata concludes not only issues decided but also those which could have been raised and decided in the earlier proceeding. Tutt v. Doby, 148 U.S.App.D.C. 171, 173, 459 F.2d 1195, 1197 (1972); Brotherhood of R.R. Trainmen v. Atlantic Coastline R.R.., 127 U.S.App.D.C. 298, 300, 383 F.2d 225, 227 (1967), cert. denied, 389 U.S. 1047, 88 S.Ct. 790, 19 L.Ed.2d 839 (1968); Calvin v. Calvin, 94 U.S.App.D.C. 42, 44, 214 F.2d 226, 228 (1954); Knutson v. Gallsworthy, 82 U.S.App.D.C. 304, 308, 164 F.2d 497, 501 (1947). Compare notes 12-14 supra. Here, however, both the parties and the claims differ significantly. See text infra at notes 29-33. . We do not suggest, as did the District Court, see text supra at note 25, that Ms. Rosendorf’s liability could have been a proper subject of investigation in that proceeding. Unlike the District Court, we discern nothing in D.C.Code §§ 21-1501 to 1507 (1973) dispensing with the need for an independent action when the objective is recovery of estate assets in the hands of third parties. In any event, the highest court of the District of Columbia — the final authority on the meaning of District of Columbia statutes— has ruled that Ms. Rosendorf s liability is adjudicable in the instant case. See text supra at notes 19-23. For our purposes the matter ends there. . See text supra at notes 12-13. . See note 16 supra. . See In re Rosendorf, supra note 8, J.App. 88-92; Rosendorf v. Toomey, supra note 4, 349 A.2d at 698-700. . See generally, e. g., Prosser, Torts § 15 (4th ed. 1971). . See text supra at note 14. . See text supra at notes 19-23." }, { "docid": "23278473", "title": "", "text": "in which resolution of an issue in a prior judicial forum was given conclusive effect in a subsequent proceeding, see Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). For examples of such cases in which resolution of an issue in a prior administrative forum was given conclusive effect in a subsequent proceeding, see Bowen v. United States, 570 F.2d 1311, 1321-22 (7th Cir. 1978), and cases cited therein. See also Safir v. Gibson, 432 F.2d 137 (2d Cir. 1970), cert. denied, 400 U.S. 850, 91 S.Ct. 57, 27 L.Ed.2d 88, in which the court enjoined the Maritime Subsidy Board from relitigating an issue that had been litigated by the Federal Maritime Commission. The court there noted that “the reason for applying res judicata to administrative agencies is not only to ‘enforce repose’ but also to protect a successful party from being vexed with needlessly duplicitous proceedings.” Id. at 143. . Collateral estoppel does not apply to issues that might have been litigated and determined in the earlier action but were not; nor does it apply to any matter not essential to the judgment in the prior adjudication. See Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 681 (1876); Stebbins v. Keystone Insurance Co., 156 U.S.App.D.C. 326, 331, 481 F.2d 501, 506 (1973). . The qualifying language of the injunction states; Defendants must leave plaintiff alone on this issue, unless or until the Secretary (OSHA) can specify and prove the feasibility of some engineering or administrative controls, other than machine enclosures, which will do as effective a job of employee protection as the present personal protection devices at comparable cost on a national basis (i. e., in all, or substantially all, of plaintiffs 80 plants involved), or in some one or several plants shown to be unique. We interpret the phrase shown to be unique in the last two lines to mean shown to have significantly different noise problems or noise problems that" }, { "docid": "17790435", "title": "", "text": "to show that the alleged acts of discrimination were in fact motivated by appellant’s own behavior. In this regard, the fact that another court had previously found that the appellant could not be evicted because he had not actually assaulted the receptionist is at best of only ambiguous significance. The difference between the issues is such that collateral estoppel was inappropriate, as it cannot be asserted that the question of whether or not Miller harassed the receptionist was litigated and decided in the earlier case, Stebbins v. Key stone Insurance Co., 156 U.S.App.D.C. 326, 331, 481 F.2d 501, 506 (1973); Developments in the Law: Res Judicata, 65 Harv.L.Rev. 818, 849 (1952). Moreover, it cannot be said that the judgment of the Court of General Sessions necessarily included a finding that Mr. Miller had not been obstreperous to his receptionist, United Shoe Machinery Corp. v. United States, 258 U.S. 451, 459, 42 S.Ct. 363, 66 L.Ed. 708 (1922); Tutt v. Doby, 148 U.S.App.D.C. 171, 173, 459 F.2d 1195, 1197 (1972). The Supreme Court has made clear that collateral estoppel must be construed narrowly to apply only to instances where there has been “an adjudication on the merits”, United States v. International Building Co., 345 U.S. 502, 506, 73 S.Ct. 807, 97 L.Ed. 1182 (1953), and generally only to “issues actually litigated and determined in the pri- or suit,” Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122 (1955). We feel no hesitation in determining that such estoppel was inappropriate in this case. As for the district court’s refusal to instruct the jury that Miller had been found not guilty of assaulting the employee, we find no error in this refusal. Once a jury has been fairly and adequately instructed, the requirements of the law are satisfied, Piechoski v. Grace Lines, Inc., 409 F.2d 66 (3d Cir. 1969); Lind v. Aetna Casualty & Surety Co., 374 F.2d 377 (5th Cir. 1967). There is no doubt here that the instructions adequately presented the issues to be resolved by the jury. The requested “instruction” was not" } ]

[ { "docid": "22628748", "title": "", "text": "to adopt such an extension. But even if we were willing to extend the fair-cross-section requirement to petit juries, we would still reject the Eighth Circuit’s conclusion that “death qualification” violates that requirement. The essence of a “fair-cross-section” claim is the systematic exclusion of “a ‘distinctive’ group in the community.” Duren, supra, at 364. In our view, groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as the “Witherspoonexcludables” at issue here, are not “distinctive groups” for fair-cross-section purposes. We have never attempted to precisely define the term “distinctive group,” and we do not undertake to do so today. But we think it obvious that the concept of “distinctiveness” must be linked to the purposes of the fair-cross-section requirement. In Taylor, supra, we identified those purposes as (1) “guarding] against the exercise of arbitrary power” and ensuring that the “commonsense judgment of the community” will act as “a hedge against the overzealous or mistaken prosecutor,” (2) preserving “public confidence in the fairness of the criminal justice system,” and (3) implementing our belief that “sharing in the administration of justice is a phase of civic responsibility.” Id., at 530-531. Our prior jury-representativeness cases, whether based on the fair-cross-section component of the Sixth Amendment or the Equal Protection Clause of the Fourteenth Amendment, have involved such groups as blacks, see Peters v. Kiff, 407 U. S. 493 (1972) (opinion of Marshall, J.) (equal protection); women, see Duren, swpra (fair cross section); Taylor, supra (same); and Mexican-Americans, see Castaneda v. Partida, 430 U. S. 482 (1977) (equal protection). The wholesale exclusion of these large groups from jury service clearly contravened all three of the aforementioned purposes of the fair-cross-section requirement. Because these groups were excluded for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case, the exclusion raised at least the possibility that the composition of juries would be arbitrarily skewed in such a way as to deny criminal defendants the benefit of the common-sense" } ]

[ { "docid": "8613159", "title": "", "text": "because she had scheduled an out-of-town vacation. The second African-American juror sought an excuse because she had high blood pressure and vision problems, and because she worked to support herself. The third African-American juror sought an excuse because she suffered seizures and was on medication. The trial court accepted these excuses, over McGinnis’s objections. In total, the court excused twenty-two potential jurors, including the three African-Americans. As a result, the pool of jurors presented to the attorneys for peremptory challenges contained no African-Americans. A McGinnis first argues that the state court’s excusal of all three African-American venirepersons violated the Sixth Amendment. The Sixth Amendment requires that juries in criminal trials must be “drawn from a fair cross section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975). Accordingly, “venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Duren v. Missouri, 439 U.S. 357, 363-64, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). To establish a prima facie Sixth Amendment violation, McGinnis must show, (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this un-derrepresentation is due to systematic exclusion of the group in the jury selection process. Id. at 364, 99 S.Ct. at 668, As to the first requirement of the prima facie case, African-Americans are unquestionably a “distinctive group in. the community” for Sixth Amendment purposes. See United States v. Royal, 174 F.3d 1, 6 (1st Cir.1999); United States v. Rioux, 97 F.3d 648, 654 (2d Cir.1996). As to the second requirement, McGinnis presents statistics on the proportion of African-Americans on jury venires relative to the whole community. However, we need not decide whether these statistics are sufficient, to satisfy the second requirement, because McGinnis’s evidence plainly fails to satisfy the third requirement. McGin-nis fails to show" }, { "docid": "6517985", "title": "", "text": "in the fairness of the criminal justice system, with respect to community participation in jury trials, is a concern the Supreme Court explicitly recognized in Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975). In Garcia, our court recognized that the Sixth Amendment guarantees a criminal defendant a jury made up of a fair cross-section of the community. 991 F.2d at 491 (citing Taylor v. Louisiana, 419 U.S. at 530, 95 S.Ct. at 697). For a defendant to establish a prima facie violation of the constitutional fair cross-section requirement, he must show: (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. (citing Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979)). While recognizing African Americans constitute a distinctive group, id. (citing Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972)), our court in Garcia declined to consider whether African-American representation in Iowa venires is fair and reasonable. Instead, it determined that Garcia failed to demonstrate that the jury-selection process systematically excluded African Americans from representation in jury pools, and thus, he failed to establish a prima facie violation. Id. In rejecting Garcia’s argument of systematic exclusion, our court introduced an element of intentional discrimination not required by the Supreme Court. Our court stated: Garcia does not contend that Iowa law imposes any suspect voter registration qualifications or that the Plan is administered in a discriminatory manner. Garcia has not made any showing that African Americans or Hispanies are systematically excluded from the jury-selection process. A numerical disparity alone does not violate any of Garcia’s rights and thus will not support a challenge to the Iowa Plan. Id. at 492. In contrast, the Supreme Court, in Duren v. Missouri, found a" }, { "docid": "23255926", "title": "", "text": "Defendant’s challenges, we review the district court’s findings of fact for clear error and its determinations of law de novo. United States v. Alix, 86 F.3d 429, 434 (5th Cir.1996). A. Due Process Challenge Defendant alleges that the underrepresentation of African-Americans on the venire for his second trial violated his right to due process. The Sixth Amendment and the Due Process Clause of the Fifth Amendment require that a jury be drawn “from a fair cross section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975). To establish a prima facie violation of the fair cross section requirement: the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). In so far as African-Americans constitute a distinctive group in the community, the first requirement of Defendant’s prima facie case is met. McGinnis v. Johnson, 181 F.3d 686, 689 (5th Cir.1999). With respect to the second requirement of his prima facie case, Defendant offers as evidence of underrepresentation the fact that the veni-re selected from the Jackson Division was comprised of 51 potential jurors, 21 of which were African-American; while the venire for the second trial, selected from the entire Southern District of Mississippi, was composed of 78 potential jurors, only 20 of which were African-American. In determining whether the venire is a fair and reasonable representation of the community, the relative compositions of Defendant’s two venire panels is not relevant. The Duren test instead focuses on whether the representation of African-Americans in the challenged venire was fair and reasonable in relation to the number of African-Americans in the community. The relevant community consisting of those individuals who are eligible to" }, { "docid": "3193324", "title": "", "text": "may prescribe relevant qualifications for their jurors, members of a community may not be excluded from jury service on account of their race. Id.; Swain v. Alabama, 380 U.S. 202, 203-204, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); overruled on other grds by Batson v. Kentucky, 476 U.S. 79, 82, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). A defendant, however, may not challenge the makeup of a jury merely because no members of his or her race are on a jury, but must prove that his or her race has been systematically excluded. Apodaca v. Oregon, 406 U.S. 404, 413, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); See also United States v. Mack, 159 F.3d 208, 219 (6th Cir.1998) (criminal defendant has no affirmative right to a jury with a particular racial composition). In order to establish a prima facie violation of the fair cross-section requirement, a defendant must show: (1) that the group alleged to have been excluded is a ‘distinctive group’ in the community; (2) that the representation of that group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the under-representation is due to the systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). “More than mere numbers must be provided to establish that African-Americans are systematically underrepresented in the [jury] venire.” United States v. Greene, 971 F.Supp. 1117, 1128 (E.D.Mich.1997)(Rosen, J.). The strength of the evidence of under-representation of the group in the venire is only one factor to be considered in determining whether a prima facie violation of the fair cross-section requirement has been established. Factors such as the nature of the process by which jury lists are composed and the length of time of under-representation, together with the strength of the evidence that purports to establish unfair and unreasonable representation also need to be examined. Id.,citing to Ford v. Seabold, 841 F.2d 677 (6th Cir.1988). The main evidence that petitioner has presented" }, { "docid": "18504459", "title": "", "text": "is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (8) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). There is no question here that Carmichael established the first prong of the Duren test — African Americans represent a distinctive group in the community. We hold that Carmichael failed to establish the second prong of the Duren test, that the representation of African Americans was not fair and reasonable. We therefore decline to address the third prong of systematic exclusion. To analyze whether African Americans were fairly and reasonably represented in the jury pool, we compare the difference between the percentage of African Americans in the population eligible for jury service and the percentage of African Americans in the pool. See United States v. Pepe, 747 F.2d 632, 649 (11th Cir.1984). Under black letter Eleventh Circuit precedent, “[i]f the absolute disparity between these two percentages is ten percent or less, the second element is not satisfied[,]” United States v. Grisham, 63 F.3d 1074, 1078-79 (11th Cir.1995), and Carmichael failed to meet his burden of establishing that the representation of African Americans was not fair and reasonable. Here, the percentage of African Americans eligible for jury service is in dispute. Carmichael claims that this percentage is 30.466%, the percentage of adults residing in the Middle District that were African American, according to the 2000 census. The United States disagrees, arguing that the relevant percentage should be the percentage of African Americans registered to vote in the Middle District. According to the United States, voter registration data is a better measure of jury eligibility because it, unlike census data, automatically excludes persons who would otherwise be ineligible to serve on a jury, including felons, criminal defendants, and otherwise ineligible persons. Although the record does not reveal the exact percentage of African Americans" }, { "docid": "23255927", "title": "", "text": "v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). In so far as African-Americans constitute a distinctive group in the community, the first requirement of Defendant’s prima facie case is met. McGinnis v. Johnson, 181 F.3d 686, 689 (5th Cir.1999). With respect to the second requirement of his prima facie case, Defendant offers as evidence of underrepresentation the fact that the veni-re selected from the Jackson Division was comprised of 51 potential jurors, 21 of which were African-American; while the venire for the second trial, selected from the entire Southern District of Mississippi, was composed of 78 potential jurors, only 20 of which were African-American. In determining whether the venire is a fair and reasonable representation of the community, the relative compositions of Defendant’s two venire panels is not relevant. The Duren test instead focuses on whether the representation of African-Americans in the challenged venire was fair and reasonable in relation to the number of African-Americans in the community. The relevant community consisting of those individuals who are eligible to serve as jurors in the Southern District of Mississippi. See Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469 (1953) (holding that a jury list must reasonably reflect “a cross-section of the population suitable in character and intelligence for that civic duty”). Moreover, “[Defendant] must demonstrate ... not only that [African-Americans] were not adequately represented on his jury but also that this was the general practice in other venires.” Timmel v. Phillips, 799 F.2d 1083, 1086 (5th Cir.1986); see United States v. DeFries, 129 F.3d 1293, 1301 (D.C.Cir.1997) (“Underrepresentation of a cognizable group in a single venire, without evidence of a greater pattern, is insufficient to establish the ‘systematic exclusion of the group’ required by Duren ... From a small sample size based on one venire it is difficult to determine whether the disparity is random or systemic.” (citations omitted)); Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.1989) (“Evidence of a discrepancy on a single venire panel cannot demonstrate systematic exclusion.”); United States v. Miller, 771 F.2d 1219, 1228" }, { "docid": "15464148", "title": "", "text": "Moore his due process rights. Subclaim (B) is DENIED. 2. Subclaim (C): Judge Ruehlman’s conduct throughout Petitioner Moore’s trial showed his actual or apparent bias against Petitioner Moore and the defense as well as his hostility to Petitioner Moore’s federal constitutional rights. a. During the pre-trial phase, Judge Ruehlman refused to permit Petitioner Moore’s counsel to present evidence regarding the racial imbalance of the petit jury venire. In this subclaim, Petitioner contends that he was denied a fair opportunity to present evidence regarding an alleged imbalance in the petit jury venire such that African-Americans in general, and African-American men in particular, were underrepresented. Relatedly, Petitioner contends that the trial court should have selected a new petit jury venire because of the racial imbalance on his venire. Chief Magistrate Judge Merz analyzed this subclaim from the perspective of whether Petitioner was able to establish that the venire had been properly selected pursuant to Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Defendants have a constitutional right to a jury selected from a fairly representative cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). “[T]he selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” Id. In Duren, the Supreme Court explained how to establish a prima facie violation of the fair cross-section requirement: [T]he defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. 439 U.S. at 364, 99 S.Ct. 664. The fair-representation requirement does not require the composition of the petit jury to “mirror” the community. Taylor, 419 U.S. at 538, 95 S.Ct. 692. In this ease, trial counsel for Petitioner received completed juror" }, { "docid": "18504458", "title": "", "text": "United States v. Orange, 447 F.3d 792, 800 (10th Cir.2006) (citing United States v. Test, 550 F.2d 577, 586 n. 8 (10th Cir.1976) (collecting cases) (internal quotations omitted)). Finally Carmichael complained that the Jury Administrator did not do enough to follow up on jury questionnaires that were returned due to out of date mailing addresses, and that this caused a drop in the percentage of African Americans in his jury pool. Admittedly, the Jury Administrator did not have any routine practice for securing updated addresses or for following up on questionnaires returned as undeliverable. Neither the JSSA nor the Jury Plan, however, required the Jury Administrator to affirmatively pursue undelivered questionnaires. Given this lack of authority, we decline to find a violation, let alone a substantial violation, of the JSSA. B. Carmichael alleged that the composition of his jury pool failed to satis fy the Sixth Amendment’s fair cross-section requirement. “In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (8) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). There is no question here that Carmichael established the first prong of the Duren test — African Americans represent a distinctive group in the community. We hold that Carmichael failed to establish the second prong of the Duren test, that the representation of African Americans was not fair and reasonable. We therefore decline to address the third prong of systematic exclusion. To analyze whether African Americans were fairly and reasonably represented in the jury pool, we compare the difference between the percentage of African Americans in the population eligible for jury service and the percentage of African Americans in the pool. See United States v. Pepe," }, { "docid": "5310155", "title": "", "text": "drawn from a fair cross-section of the community was violated. In order to establish a prima facie violation of the fair cross-section requirement, Appellants must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in the venire panel is not reasonable in relation to the number of such persons in the community; (3) that this under-representation is due to systematic exclusion in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). The district court noted, and Appellee does not contest, that African-Americans are a distinctive group within the Amarillo Division of the Northern District of Texas. However, the record supports the district court’s finding that there was no systematic exclusion of African Americans in the jury selection process. We therefore conclude that Appellants failed to make out a prima facie claim under the Sixth Amendment. c. Equal Protection Appellants claim that they made out a prima facie case of equal protection violation by establishing that there was an under-representation of African-Americans on the venire and that the opportunity for discrimination existed in the operation of the jury selection system, citing Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). In Alexander, “Negroes” constituted 21% of the population presumptively eligible for grand jury service, but the grand jury selected included no “Negroes.” Although there was no evidence that the commissioners consciously selected by race, the racial designation on the-jury questionnaires and information cards provided the opportunity for racial discrimination. This opportunity, in combination with the substantial disparity between the proportion of African-Americans chosen and the proportion in the eligible population, established a prima facie case of discrimination. We hold that Appellants have not made out a prima facie case of equal protection violation. The disparity between 2.28% eligible African-American population, and no African Americans on the venire panel does not raise the inference that racial discrimination rather than chance produced the result. See Alexander, 405 U.S. at 630, 92 S.Ct. at 1225. The opportunity" }, { "docid": "7594403", "title": "", "text": "jury of the state and district wherein the crime shall have been committed.” The Supreme Court has previously interpreted this amendment to guarantee a criminal defendant a jury drawn from a source fairly representative of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). To establish a violation of this “fair cross-section” requirement, ap pellants must show (1) that the group alleged to have been excluded is a “cognizable” or “distinctive group” within the community; (2) that representation of this group in venires was not fair and reasonable in relation to the number of such persons in the community; and (3) that the under-representation was due to the systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). Here appellants have established only the first item, that African-Americans are a cognizable and distinctive group. See United States v. Douglas, 795 F.Supp. 909, 912 (N.D.Iowa 1991). Appellants present certain statistics in support of their case. They note that while no African-Americans were on the panel from which their jury was chosen, 1.4% of the District of Minnesota’s Fourth Division venire during September and October, 1992, was composed of African-Americans, although 2.9% of the population in the Fourth Division is black. In United States v. Whitley, 491 F.2d 1248, 1249 (8th Cir.), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 (1974), this court found a similar statistical deviation “simply too slight to establish a prima facie case of knowing and intentional exclusion.” While the Constitution forbids “wheels, pools of names, panels, or venires ... [that] systematically exclude distinctive groups in the community”, it does not mandate that every jury that tries a criminal defendant “must mirror the community”. Taylor, 419 U.S. at 538, 95 S.Ct. at 702. Appellants have failed to present adequate evidence that the representation of African-Americans in the venire was not fair and reasonable in relation to the admittedly small number of African-Americans in the District of Minnesota’s Fourth Division. The third Taylor-Duren requirement, a" }, { "docid": "2461148", "title": "", "text": "over, we conclude that the district court correctly held that the jury selection plan did not substantially fail to comply with the random selection requirements of the JSSA. B. The Sixth Amendment “Fair Cross-section” Requirement. Appellants argue that the “fair cross-section” requirements of both the JSSA and the Sixth Amendment entitled them to a venire panel that contained at least some African-Americans unless the government demonstrated that the under-representation was not due to a systematic exclusion of African-Americans in the jury selection process. The Sixth Amendment requires that the jury venire from which a jury is selected represent a “fair cross-section” of the community. Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 696-97, 42 L.Ed.2d 690 (1975). In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court held that a defendant may establish a prim a facie fair cross-section violation by showing (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. at 364, 99 S.Ct. at 668. The government may rebut this prima facie case by showing that “a significant state interest [is] manifestly and primarily advanced by those aspects of the jury-selection process ... that result in the disproportionate exclusion of a distinctive group. Id. at 367-68, 99 S.Ct. at 670. Appellants have satisfied the first prong the Duren test, but they have not satisfied the other two. Duren and its progeny make crystal clear that a defendant’s prima facie case includes all three elements listed above, and each must be established before the government is required to justify an infringing selection procedure. See Duren, 439 U.S. at 367-69, 99 S.Ct. at 670-71; Ford v. Seabold, 841 F.2d 677, 681 (6th Cir.1988). Appellants have not established Duren’s second prong, i.e., that the representation of African-Americans in" }, { "docid": "10711706", "title": "", "text": "provides that a criminal defendant “shall enjoy the right to a speedy and public trial[ ] by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const, amend. VI. The Supreme Court has explained that this requires “the selection of a petit jury from a representative cross section of the community.” Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975). To establish a prima facie violation of this constitutional requirement, the defendant must show: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this un-derrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). If a defendant cannot establish any one of these elements, his claim under the Sixth Amendment fails. United States v. Pepe, 747 F.2d 632, 649 (11th Cir.1984). To determine whether the representation of a group is fair and reasonable, we look only to the “absolute disparity” produced in the selection process. Id. Here, this term refers to the percentage point difference between the percentage of the African American and Hispanic populations eligible for jury service and the percentage of African Americans and Hispanics in the jury pool. See Carmichael, 560 F.3d at 1280. “Under black letter Eleventh Circuit precedent, ‘if the absolute disparity ... is ten percent or less, the second element is not satisfied.’ ” Id. (quoting Grisham, 63 F.3d at 1078-79). Both in the district court and on appeal, Pritt conceded that for each of the years he questions, none of the relevant absolute disparities exceeded 10 percent. Instead, he urges us to reassess the requirement that a criminal defendant demonstrate an absolute disparity of more than 10 percent. Although Pritt’s argument has some force, this panel may not revisit that requirement. Under our" }, { "docid": "13798383", "title": "", "text": "discrimination. Under these circumstances, the prosecutor was not required to state a neutral reason for excluding Terry Ramsey. This claim is denied. 12. Petitioner’s conviction and sentence violate the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution as the state systematically eliminated African-Americans from the jury pool. In this claim, Montgomery argues that his constitutional rights were violated because the state systematically excluded African Americans from the jury pool. There is no error. To show verdict-impacting racial bias in a jury venire, Petitioner must do more than merely show a racial imbalance between the jury venire and the population at large. Indeed, he must show: 1. The group alleged to be excluded is a “distinctive” group in the community; 2. The representation of this group of venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3. This under-representation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).' In support of his claim, Petitioner submitted data detailing the grand jury members (but not their races) from his trial and an untitled page of statistics seemingly indicating that more African Americans are defendants in Lucas County criminal actions than whites, none of which demonstrate that African Americans are systematically excluded from Ohio criminal jury pools. Montgomery has also shown that only one African American was ultimately seated in his case. Since United States v. Tuttle, 729 F.2d 1325, 1327 (11th Cir.1984) was decided, this Circuit has consistently required an absolute disparity of over 10% between the underrepresented group’s proportion of the general or age-eligible population and its representation on the venire to establish a prima facie case of racial disparity in jury pools. See e.g., Coleman v. Mitchell, 268 F.3d 417, 441-42 (6th Cir.2001); United States v. Butler, 611 F.2d 1066, 1069-70, n. 9 (5th Cir.1980), cert. denied sub nom. Fazio v. United States, 449 U.S. 830, 101 S.Ct. 97, 66 L.Ed.2d 35 (1980). In this" }, { "docid": "23606739", "title": "", "text": "jury venire nor the petit jury represented a fair cross-section of the community. Defendants also contend that the government improperly used its peremptory challenges to strike black venire members from the jury; that the district court did not adequately question the jurors about potential racial or religious prejudice; and that the jury was tainted due to fears for their safety — fears that they allege were not properly addressed by the district court. We will address each of these challenges in turn. A. The “Fair Cross-Section” Requirement Under Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), a defendant who challenges the composition of the jury venire must demonstrate three separate elements in order to establish a prima facie violation of the fair cross-section requirement. The defendant must demonstrate: (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in the venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepre-sentation is due to systematic exclusion of the group in the jury-selection process. Id. at 364, 99 S.Ct. at 668. See also Humphrey v. United States, 896 F.2d 1066, 1069 (7th Cir.1990). Eight of the 65 venire members were black. Thus roughly 12 percent of the pool of potential jurors belonged to that group in the community. Defendants contend that the Northern District of Illinois counts 20 percent of its population as African-American; eight percentage points higher than the venire. We have never held that such a de minimis disparity amounts to an unfair or unreasonable representation of any “distinctive group.” As the Supreme Court has noted, discrepancies of less than ten percent, standing alone, cannot support a claim of underrepresentation. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Defendants, therefore, have not established the second element of the Duren standard. Even had the defendants survived this hurdle, however, they have not alleged any pattern of systematic exclusion of potential jurors" }, { "docid": "22561388", "title": "", "text": "exclusion of African-American ve-nire persons. “A criminal defendant has a Sixth Amendment right to a jury pool comprised of a fair cross section of the community.” United States v. Robertson, 45 F.3d 1423, 1439 (10th Cir.) (citing Duren v. Missouri, 439 U.S. 357, 358-59, 99 S.Ct. 664, 665-66, 58 L.Ed.2d 579 (1979)), cert. denied, — U.S. -, — U.S. -, 115 S.Ct. 2258, 115 S.Ct. 2259, 132 L.Ed.2d 265, 132 L.Ed.2d 265 (1995). To establish a prima facie violation of the Sixth Amendment-based fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren, 439 U.S. at 364, 99 S.Ct. at 668; see also United States v. Yazzie, 660 F.2d 422, 425-26 (10th Cir.1981), cert. denied, 455 U.S. 923, 102 S.Ct. 1282, 71 L.Ed.2d 464 (1982). We conclude Defendant Edwards has failed to establish a prima facie violation of the fair-cross-section requirement. Although Defendant Edwards relies on statistics outside the record in an attempt to show that the representation of African-Americans is “not fair and reasonable in relation to the number of such persons in the community,” Duren, 439 U.S. at 364, 99 S.Ct. at 668, Defendant Edwards has failed to show that a “systematic exclusion” of African-Americans occurred. By chance, the venire had one non-caucasian. In the absence of a showing of a “systematic exclusion” of African-Americans, Defendant Edwards has failed to demonstrate a prima facie violation of the fair-cross-section requirement. See Duren, 439 U.S. at 364, 99 S.Ct. at 668-69; Robertson, 45 F.3d at 1439. Consequently, we reject Defendant Edward’s request to remand to the district court for an evidentiary hearing. B. Fed.R.Crim.P. 15 Defendant Edwards next argues that the district court erred in denying his motion to depose H. Grist pursuant to Fed.R.Crim.P. 15. We disagree. Fed.R.Crim.P. 15 governs" }, { "docid": "19005547", "title": "", "text": "its noncompliance was challenged in federal district court, Illinois argued that the Act is unconstitutional. Id. at 792. The district court rejected Illinois’ argument and entered a “sweeping injunction” requiring compliance. Id. On appeal, the Seventh Circuit affirmed, although it did trim the district court’s detailed injunction to a simple command that Illinois adhere to the Act. Id. at 798. The court also dissolved the stay of the injunction that had been in effect pending appeal. Id. at 798. Greer’s argument is based on the Sixth Amendment, which guarantees a criminal defendant an impartial jury. U.S. Const, amend. VI. As part of this guarantee, a defendant has the right to have a jury selected from a representative cross-section of the community. United States v. Guy, 924 F.2d 702, 705 (7th Cir.1991). Greer predicts that his jury pool will not embody a representative cross-section because of lack of African-Americans. Greer acknowledges that his argument is subject to the test set forth in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) and since followed by the Seventh Circuit in Guy and other eases. Under the Duren test, “to establish a prima facie violation of the fair cross-section requirement” Greer must show: (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process. Guy, 924 F.2d at 705. In summary, then, the three prongs of the Duren test are distinctive group, under-representation of the distinctive group, and systematic exclusion of the distinctive group. See id. Greer has satisfied the distinctive group prong; African-Americans unquestionably form a distinctive group. See Guy, 924 F.2d at 705 (noting that the parties did not dispute that African-Americans are a distinctive group). As for the under-representation prong, Greer has offered no evidence whatsoever that Eastern Division jury pools have under-represented African-Americans in" }, { "docid": "3193325", "title": "", "text": "from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the under-representation is due to the systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). “More than mere numbers must be provided to establish that African-Americans are systematically underrepresented in the [jury] venire.” United States v. Greene, 971 F.Supp. 1117, 1128 (E.D.Mich.1997)(Rosen, J.). The strength of the evidence of under-representation of the group in the venire is only one factor to be considered in determining whether a prima facie violation of the fair cross-section requirement has been established. Factors such as the nature of the process by which jury lists are composed and the length of time of under-representation, together with the strength of the evidence that purports to establish unfair and unreasonable representation also need to be examined. Id.,citing to Ford v. Seabold, 841 F.2d 677 (6th Cir.1988). The main evidence that petitioner has presented to establish that African-Americans are systematically excluded from jury service is that only one African-American was a member of his jury venire. “[A] one time example of under-representation of a distinctive group wholly fails to meet the systematic exclusion element” to establish a prima facie violation of the Sixth Amendment’s requirement that jurors in criminal cases be drawn from a fair cross-section of the community. McGinnis v. Johnson, 181 F.3d 686, 690 (5th Cir.1999). “[Statistics concerning only one actual jury venire and one pool of summoned jurors is patently insufficient evidence to establish systematic under-representation.” United States v. Greene, 971 F.Supp. at 1128. Petitioner, however, also contends that the jury selection process itself led to the under-representation of African-Americans on his jury, because the jury coordinator did not follow up on those juror questionnaires that were not returned. Petitioner, however, has offered no evidence concerning the race of the persons who failed to respond to the jury questionnaires, nor has he introduced any proof from which it could be inferred that such persons were likely" }, { "docid": "22561387", "title": "", "text": "not disturb the district court’s implicit determination regarding the probative value of the evidence. See id. Moreover, the district court’s jury instructions included an instruction limiting the use of the prior acts evidence. Under these circumstances, we conclude the district court did not abuse its discretion in admitting the prior acts evidence pursuant to Rule 404(b). VI. Defendant Edwards’ Pro Se Issues A. Composition of Jury Venire Defendant Edwards contends the district court erred because it “allow[ed] the jury selection process to continue after discovery of an impermissible disparity concerning un-derrepresentation of a fair cross-section of African-Americans” on the jury venire. According to Defendant Edwards, “[t]he seventy person jury venire presented for jury selection in this matter included only one non-caucasian, leaving a strong inference [of] ... impropriety.” Specifically, Defendant Edwards argues that “it is beyond belief that in Tulsa County, where a 9.8% of African-Americans reside, that zero-percent African-Americans are summoned for the jury veni-re.” Defendant Edwards contends that we remand for the district court to conduct an evidentiary hearing regarding the alleged systematic exclusion of African-American ve-nire persons. “A criminal defendant has a Sixth Amendment right to a jury pool comprised of a fair cross section of the community.” United States v. Robertson, 45 F.3d 1423, 1439 (10th Cir.) (citing Duren v. Missouri, 439 U.S. 357, 358-59, 99 S.Ct. 664, 665-66, 58 L.Ed.2d 579 (1979)), cert. denied, — U.S. -, — U.S. -, 115 S.Ct. 2258, 115 S.Ct. 2259, 132 L.Ed.2d 265, 132 L.Ed.2d 265 (1995). To establish a prima facie violation of the Sixth Amendment-based fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren, 439 U.S. at 364, 99 S.Ct. at 668; see also United States v. Yazzie, 660 F.2d 422, 425-26 (10th Cir.1981), cert. denied, 455" }, { "docid": "15429556", "title": "", "text": "show: (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresen-tation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). See also United States v. McAnderson, 914 F.2d 934, 941 (7th Cir.1990); Humphrey v. United States, 896 F.2d 1066, 1069 (7th Cir.), cert. denied, — U.S.-, 111 S.Ct. 342, 112 L.Ed.2d 306 (1990). Once Guy has made a prima facie showing as to these elements, the burden shifts to the state to show that an overriding, significant state interest is manifestly advanced by those aspects of the jury selection process that result in the disproportionate exclusion of a distinctive group. Duren, 439 U.S. at 367, 99 S.Ct. at 670. See also Davis v. Warden, 867 F.2d 1003, 1006 (7th Cir.), cert. denied, — U.S. —110 S.Ct. 285, 107 L.Ed.2d 264 (1989). The parties do not dispute that African-Americans- form a distinct group in the community. See Davis, 867 F.2d at 1006 (citing Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880)). Thus, there is no question that Guy satisfies the first prong of Duren. Although posing somewhat greater difficulty, Guy may have satisfied Duren’s second prong as well. Under this second prong, Guy must prove that the representation of African-Americans on the venire from which the petit jury was chosen was hot fair and reasonable in relation to their number in the community. Davis, 867 F.2d at 1006. Here the relevant community is the twenty-six counties composing the Indianapolis Division of the Southern District of Indiana. To support his claim that the representation of African-Americans on the venire was not reasonable given the number of African-Americans in the community, Guy argues that the absence of any African-Americans on the venire failed to represent the significant percentage of African-Americans in the" }, { "docid": "4887495", "title": "", "text": "VENIRE PANEL Appellants complain that the district court erred in denying their motion to quash the venire panel for violation of the fair cross section requirement, their constitutional right to equal protection, the Jury Selection Act, and the Jury Plan for the Northern District of Texas. a. Fair cross section argument In order to prove a fair cross section violation, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). The district court held that Appellants failed to establish the second prong of a prima facie fair cross section violation because the evidence adduced at the hearing showed that African-Americans have been fairly and reasonably represented on venires in the Fort Worth division. Appellants presented evidence that the African-American population in the Fort Worth division is approximately 10.4%. That figure, which represents the percentage of African-Americans in the gross population of the division, is irrelevant for Sixth Amendment purposes, however, because the pertinent inquiry is the pool of African-Americans in the district who are eligible to serve as jurors. United States v. Brummitt, 665 F.2d 521, 529 (5th Cir.1981), cert. denied, 456 U.S. 977, 102 S.Ct. 2244, 72 L.Ed.2d 852 (1982). Instead of the 10.4% figure, the district court relied on Appellants’ evidence that in a sampling done by the Administrative Office, 10% of the eligible jurors were African-American. During the thirteen month period preceding the venire selection for this case, 7.66% of persons summoned to serve were African-American. The district court held that the resulting 2.34% disparity was within the permissible parameters, relying on United States v. Hawkins, 661 F.2d 436, 442 (5th Cir.1981) (holding that a 5.45% underrepresentation falls within the limits set forth by the" } ]

[ { "docid": "12500918", "title": "", "text": "be a commuter alien to warrant special immigrant treatment. However, to fit within the statutory definition, appellee must show that she is lawfully admitted for permanent residence and returning from a temporary visit abroad. Appellee fits the first condition as it is interpreted by Saxbe. In that case, the Supreme Court held that an immigrant is not required to maintain a permanent residence in the United States in order to have permanent residence status. It is undisputed that appellee was accorded the status of permanent residence in 1968 when she first entered this country with a third preference visa. There is nothing in the record to show whether that status has changed. The status of being “lawfully admitted for permanent residence” carries with it certain privileges — a privilege to remain in the United States indefinitely, a privilege to work in the United States, a privilege to reside permanently in the United States if one chooses, and a privilege to make temporary visits abroad. Appellee has chosen not to remain in the United States, not to work in the United States, not to reside permanently in the United States, and to take extended visits abroad to the country of her birth. Appellee cannot both reside in the Philippines, as found by the immigration judge, and have her trips to the Philippines considered temporary visits abroad. In order to exercise the privilege of leaving temporarily an alien must have a United States residence on return. In effect, the privileges granted to permanent residents coincide: an alien can leave temporarily if he or she has a United States residence to which he or she can return; but if an alien chooses not to have a permanent residence, he or she cannot leave temporarily and reenter as a special immigrant. This analysis is required by INS regulations interpreting its special immigrant provision which states that an 1-151 alien registration card is sufficient for “an immigrant alien returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding one year”. Further, appellee’s visits to the Philippines cannot" } ]

[ { "docid": "2849119", "title": "", "text": "“commuters” are “special immigrants” admittable irrespective of quotas or labor certification, the court placed great weight upon the INS’s longstanding construction of the statute and practice of treating “commuters” as “special immigrants,” which longstanding practice had been acquiesced in by Congress. Id. at 73-80, 95 S.Ct. at 278-281. This Court again faced the “commuter” issue in Alvarez v. District Director of INS, 539 F.2d 1220 (9th Cir.1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1334, 51 L.Ed.2d 597 (1977). The plaintiff, a native of the Philippines, entered the United States as a permanent resident in 1968 and returned to the Philippines in 1970 where she worked as a pharmacist.. Between 1970 and 1973, she made several brief trips to the United States to visit friends, gaining admission to this country with a “green card.” In upholding an immigration judge’s order of deportation, we held the plaintiff did not fall within the “commuter” category because: she did not come to the United States to work; she did not commute daily or seasonally; and her home is not m a country contiguous to the United States. Id. at 1224. Under Gooch, Saxbe, and Alvarez, appellants’ alien workers may have entered the United States to perform agricultural work; however, their status as “commuters” precludes us from finding they were lawfully admitted to the United States on a temporary basis. To have become a “commuter,” each of appellants’ workers must have acquired the status referred to in section 1101(a)(20), viz., “the status of having been lawfully accorded the privilege of residing permanently in the United States.” 8 U.S.C. § 1101(a)(20); see also Saxbe 419 U.S. at 71-72, 95 S.Ct. at 277. Their “commuter” status permitted them to take up permanent residence in the United States at the conclusion of their work for appellants; their status permitted them to leave the United States at the conclusion of their work for appellants and, subject to certain limitations, return to the United States sometime thereafter; and their status permitted them, at the conclusion of their work for appellants, to engage in nonagri-cultural work in the United States." }, { "docid": "22835070", "title": "", "text": "married indicated that Chavez did not harbor a continuous, uninterrupted intention to return. While this is certainly a close case, we find that these facts provide the substantial evidence required to support the BIA’s conclusion. Chavez claims that she had to remain in Mexico in order to help pay for her mother’s medical expenses and so that she and her husband could save enough money to return to the United States and look for employment. The BIA found her story unconvincing. Chavez stayed in Mexico for an extended period, acquired a residence in Mexico and gave birth to a child. Her testimony concerning how much money she had saved over those two and one-half years was both confused and conflicting. Until shortly before the time of her return to the United States, Chavez did not inquire about her status or attempt to take any actions to preserve it. Consequently, after examining the record as a whole, we cannot say that the BIA’s conclusion that at some point during her visit Chavez abandoned her intention to return to the United States is not supported by substantial evidence. PETITION DENIED. . Rosendo conceded deportability and, therefore, does not challenge the BIA’s findings concerning his status. . The immigration laws provide for waiver of entry documentation for all aliens “lawfully admitted for permanent residence.\" 8 U.S.C. § 1181(b). In order for Chavez to qualify she must meet the requirements for a “returning resident immigrant\" which is defined as an immigrant “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” 8 U.S.C. § 1101(a)(27)(A). . Other cases have also found visits abroad to be temporary when the date of return was not fixed by some early event but hinged on a contingency having a reasonable possibility of occurring within a short period of time. See, e.g., Nagano v. Brownell, 212 F.2d 262, 264 (7th Cir.1954) (Japanese couple who travelled to Japan to arrange the marriage of their daughters returned from a temporary visit abroad). But cf., Serpico v. Trudell, 46 F.2d 669, 670-71 (D.Vt. 1928) (immigrant who travelled abroad at" }, { "docid": "23560376", "title": "", "text": "is not the end of our problem. The question remains whether he may properly be treated as one who is in the group defined as “special immigrants” under subsection (27)(B), that is, whether commuters are “lawfully admitted for permanent residence” when they have no actual residence in this country. Section 1101 (a) (20) defines “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the ■privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed” (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed. One argument of the plaintiffs is that the status has changed because residence in this country was never claimed. But we read the Act as did the Ninth Circuit in the Gooch case to mean that the change in status which Congress had in mind was a change from an immigrant lawfully admitted for permanent residence to the status of a nonimmigrant pursuant to 8 U. S. C. § 1257. 433 F. 2d, at 79. The status referred to in § 1101 (a) (20) is acquired when an alien satisfies (1) any numerical limitations on the entry of immigrants, (2) requirements as to qualitative matters such as health, morals, and economic status, and (3) the need for an immigrant visa. The applicant must also state whether he plans to remain in the United States permanently. But the Act does not declare or suggest that the status will be denied him, if he does not intend to reside permanently here. As we read the Act, the “status” acquired carries several important privileges: He may remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States. Thus we conclude that commuters are immigrants “lawfully admitted for permanent residence.” As did both" }, { "docid": "12500913", "title": "", "text": "represented by counsel, Immigration Judge Newton T. Jones ordered appellee deported as an immigrant without valid entry documents. The immigration judge fo'und that appellee had abandoned her residence in the United States and was not returning to this country after a temporary visit to the Philippines. On the contrary, he found that she resides in the Philippines and has actually been visiting the United States temporarily every year since 1970 to preserve her permanent residence status. The Board of Immigration Appeals dismissed appellee’s appeal in February, 1975. She subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Central District of California to review the final order of exclusion entered by the immigration judge. Jurisdiction was based on 8 U.S.C. § 1105a(b). The district court granted the writ and entered judgment on March 25, 1975; at the same time, the court remanded the case to the INS for reconsideration. The INS filed a notice of appeal to this Court. This appeal raises three issues: 1. Is the decision in Saxbe v. Bustos applicable to a citizen of the Philippines who maintains a permanent home and job in the Philippines and visits the United States for a short period each year? 2. Does the Equal Protection Clause of the Constitution require that the Saxbe v. Bustos decision be extended to citizens of countries other than those contiguous to the United States? 3. On review of an action by the INS, may a district court substitute its own findings for the findings of an immigration judge? II. A “special immigrant” is defined in 8 U.S.C. § 1101(a)(27)(B) as “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad”. An earlier subsection of Section 1101 defines the term “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed”. 8 U.S.C. § 1101(a)(20). Under 8 U.S.C. § 1182(c), a “special immigrant” is allowed to enter" }, { "docid": "22193150", "title": "", "text": "lawful permanent resident status in accordance with our laws, must have retained that status from the time he acquired it, and must be returning to an ‘unrelinquished lawful permanent residence’ after a ‘temporary visit abroad.’ ” Matter of Huang, 19 I. & N. Dec. 749, 753 (1988) (quoting Santos v. INS, 421 F.2d 1303, 1305 (9th Cir.1970)). The crucial inquiry is whether Singh’s extended trips constitute “temporary visits abroad.” “Temporary” in this context is not merely an antonym of “permanent.” A trip is a “temporary visit abroad” if (a) it is for a “relatively short” period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. Chavez-Ramirez, 792 F.2d at 936-37. Singh’s trips abroad, sometimes eight or nine months in consecutive duration, could not be described as “relatively short.” If the alien’s trip abroad is not “relatively short,” it is a “temporary visit abroad” only if the alien has “a continuous, uninterrupted intention to return to the United States during the entirety of his visit.” Id. at 937. The relevant intent is not the intent to return ultimately, but the intent to return to the United States within a relatively short period. Id. In sum, a legal permanent resident may plan only a relatively short trip. He may extend his trip beyond that relatively short period only if he intends to return to the United States as soon as possible thereafter. Factors to be considered in evaluating the intent of the alien include: the alien’s family ties, property holdings, and business affiliations within the United States, and the alien’s family, property, and business ties in the foreign country. Id. An alien’s desire to retain his status as a permanent resident, without more, is not sufficient; his actions must support his professed intent. Huang, 191. & N. Dec. at 753. Singh’s few established connections to the United States, despite over two and a half years of legal permanent resident status, clearly and convincingly demonstrate his lack of an intent to" }, { "docid": "23560395", "title": "", "text": "question and the ordinary meaning of the very specific terms Congress used in these immigration statutes, this principle applies with force here. I Daily and seasonal commuters both reside in fact in either Mexico or Canada and cross the border into this country either daily or seasonally to work. The daily commuter’s defining characteristic is his limited presence in this country; he comes across the border to work each day and returns to his actual dwelling place in Mexico or Canada when his work is done. The seasonal commuter, in contrast, remains in this country continuously during the seasons in which he works here, but then absents himself completely for the remaining portions of the year. For the Court to reach its result, it must undertake the unlikely project of demonstrating that these aliens are in legal effect permanent residents of the United States under the immigration laws. To qualify as a “special immigrant” given dispensations from normal documentation requirements and numerical limitations, a commuter must be “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” 8 U. S. C. § 1101 (a) (27) (B). The included phrase “lawfully admitted for permanent residence” means in turn “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” §1101 (a) (20). The immigration laws define “perma nent residence” as “the place of general abode,” a person’s “principal, actual dwelling place in fact, without regard to intent,” § 1101 (a) (33), with the relationship of the person to the place of residence being “of continuing or lasting nature, as distinguished from temporary . . . §1101 (a) (31). Under the Immigration and Naturalization Service’s own regulations, in order to be exempt from the normal documentation requirements upon entry, an alien must be returning to his “unrelin-quished lawful permanent residence” from a “temporary absence abroad.” 8 CFR §211.1 (b)(1). On its face, the present practice of the Service is flatly contrary to its own regulation. Confronted with the" }, { "docid": "2849116", "title": "", "text": "do not fit within any of the other exclusionary categories of section 1101(a)(15). Consequently, they are deemed immigrants under section 1101(a)(15). See Gooch, 433 F.2d at 78. Generally, an immigrant will not be admitted into the United States without a valid unexpired immigration visa and a passport. 8 U.S.C. § 1181(a). However, “returning resident immigrants, defined in section 1101(a)(27)(A) ... who are otherwise admissible may be readmitted to the United States by the Attorney General in his discretion without being required to obtain a passport, immigrant visa, reentry permit or other documentation.” Id. § 1181(b). A resident immigrant or “special immigrant” is defined as: “an immigrant, lawfully admitted for permanent residence, who is returning from á temporary visit abroad.” Id. § 1101(a)(27)(A). In Gooch, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971), we upheld the INS’s longstanding practice of classifying “commuters” as section 1101(a)(27)(B) “special immigrants,” 433 F.2d at 78, permitting the Attorney General to admit “commuters” under the informal documentation requirements of section 1181(b), and exempting “commuters” from the quota limitations applicable to immigrants and the labor certification requirements applicable to H-2 workers. The Supreme Court adopted much of Gooch’s reasoning in Saxbe v. Bustos, 419 U.S. 65, 95 S.Ct. 272, 42 L.Ed.2d 231 (1974). In Saxbe the United Farm Workers Committee brought suit challenging the INS’s practice of allowing aliens to commute to places of employment in the United States on a daily or seasonal basis as “special immigrants.” The Court upheld the INS’s practice and reasoned that because “commuters” do not fall within any of the non-immigrant categories of section 1101(a)(15), they are immigrants. Id. at 71, 95 S.Ct. at 277. A “special immigrant” is “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” 8 U.S.C. § 1101(a)(27)(B). Section 1101(a)(20) defines “lawfully admitted for permanent residence,” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” This section 1101(a)(20) status is acquired when “an alien satisfies (1) any" }, { "docid": "2849118", "title": "", "text": "numerical limitations on the entry of immigrants, (2) requirements as to qualitative matters such as health, morals, and economic status, and (3) the need for an immigrant visa. The applicant must also state whether he plans to remain in the United States permanently.” Saxbe, 419 U.S. at 72, 95 S.Ct. at 277 (footnotes omitted). The INA does not state that the status will be denied him if he does not intend to reside permanently in the United States. Id. “[T]he status acquired carries several important privileges: [the commuter] may remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States.” Id. Relying on the reasoning of Gooch, the Court found that a “commuter’s” nightly or seasonal departure from the United States to his foreign residence is a “temporary visit abroad” from which he returns when he reenters the United States for employment. Id. Finally, in concluding that “commuters” are “special immigrants” admittable irrespective of quotas or labor certification, the court placed great weight upon the INS’s longstanding construction of the statute and practice of treating “commuters” as “special immigrants,” which longstanding practice had been acquiesced in by Congress. Id. at 73-80, 95 S.Ct. at 278-281. This Court again faced the “commuter” issue in Alvarez v. District Director of INS, 539 F.2d 1220 (9th Cir.1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1334, 51 L.Ed.2d 597 (1977). The plaintiff, a native of the Philippines, entered the United States as a permanent resident in 1968 and returned to the Philippines in 1970 where she worked as a pharmacist.. Between 1970 and 1973, she made several brief trips to the United States to visit friends, gaining admission to this country with a “green card.” In upholding an immigration judge’s order of deportation, we held the plaintiff did not fall within the “commuter” category because: she did not come to the United States to work; she did not commute daily or seasonally; and her home is" }, { "docid": "23560370", "title": "", "text": "unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding 1 year.” The Act presumes that an alien is an immigrant “until he establishes . . . that he is entitled to a nonimmigrant status”; and it defines “immigrant” as every alien who cannot bring himself into an enumerated class of non-immigrants. One class of nonimmigrants is “an alien having a residence in a foreign country which he has no intention of abandoning . . . (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.” An alien does not qualify as a nonimmigrant under this class of nonimmigrants if he seeks to perform temporary labor at a time when unemployed persons capable of performing that labor can be found in this country. If he cannot qualify as a nonimmigrant some other way, such an alien is subject to the Act’s numerical limitations, unless he is included in the classes of “immediate relatives” of a United States citizen or “special immigrants.” On the other hand, as already noted, one variety of “special immigrant” is an alien “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” One who so qualifies is excluded from the labor certification provisions in 8 U. S. C. § 1182 (a) (14). The term “lawfully admitted for permanent residence” is defined as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant..., such status not having changed.” An alien achieves that status in the first instance by complying with any applicable numerical limitations and with the Act’s other requirements for admission, details not important here. After his initial admission on that basis, he is free to leave this country temporarily and to re-enter without regard to numerical limitations. The Act authorizes the Attorney General to re-admit such an alien without a visa or other formal documentation. § 1181 (b). He has exercised that authority, allowing such an immigrant" }, { "docid": "22187136", "title": "", "text": "Alaka challenges the IJ’s determination that she was ineligible for possible relief under former § 212(c) of the INA, and cancellation of removal under 8 U.S.C. § 1229b, on the ground that she had abandoned her lawful permanent resident status, a prerequisite for both forms of relief. See 8 U.S.C. § 1229b(a)(l) (to be eligible for cancellation, alien must be “lawfully admitted for permanent residence for not less than 5 years”) and 8 C.F.R. § 212.3(f)(2) (to be considered for § 212(c) relief alien must have “maintained lawful domicile in the United States ... as ... a lawful permanent resident ... for at least seven consecutive years immediately preceding the filing of the application”). Alaka claims that the conclusion that she abandoned her permanent legal resident status is based on legal error, and the Government argues it is a factual question that we do not have jurisdiction to review. In this particular context, we agree with the Government. The basic test for evaluating whether a lawful permanent resident has abandoned that status by virtue of traveling abroad is “whether [the petitioner’s] extended trips [outside the United States] constitute ‘temporary visits abroad.’ ” Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir.1997); see also Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir.2003); Ahmed v. Ashcroft, 286 F.3d 611, 612-13 (2d Cir.2002). A trip is “temporary” if it is (1) “relatively short,” or (2) if not short, the petitioner had “a continuous, uninterrupted intention to return to the United States during the entirety of his visit.” Singh, 113 F.3d at 1514 (internal quotation marks and citations omitted). As to intent, “[t]he issue is not whether the petitioner had the intent to return ultimately, but the intent to return to the United States within a relatively short period.” Id. Here, Alaka’s trips abroad (lasting up to twenty-two months) were not short; thus, the critical issue was whether she had the requisite uninterrupted intent to return to the United States. Determining a petitioner’s intent is a fact-based inquiry. See Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir.2005) (considering “fact-intensive question of whether" }, { "docid": "22193155", "title": "", "text": "the brief periods Singh spent in the United States he neither maintained his own residence, nor a job of any permanence. Singh’s pattern, therefore, was to live abroad most of the year and to spend his summers working in California and living in a dwelling furnished by his employer. Several cases have held that aliens relinquish their permanent resident status in directly analogous circumstances. See, e.g., Alvarez v. District Director, 539 F.2d 1220, 1222 (9th Cir.1976) (alien relinquished permanent resident status despite spending two or three consecutive months living in the U.S. and staying with friends); Angeles v. District Director, 729 F.Supp. 479, 481 (D.Md.1990) (10- to 11-month annual absences and residing at relative’s home in U.S.); Huang, 19 I. & N. Dec. at 750 (11-month annual trips abroad and residing at relative’s home while in U.S.); Kane, 15 I. & N. Dec. at 258 (11-month annual absences from U.S. and residing in rented furnished home while in U.S.). Singh made long trips abroad of nine months and almost eight months, without any residence or employment of any permanence to return to. The slight difference in the duration of Singh’s long trips abroad and those in the above cases does not convert Singh’s extensive absences to “temporary visits abroad.” The INS argues that these activities are consistent with those of a nonimmigrant visitor for business and we agree. The evidence clearly shows a visitor who spent a sporadic amount of time in the United States until he could establish a permanent residence in this country “at some indefinite time in the possibly distant future.” Angeles, 729 F.Supp. at 484. Singh spent his summers in California, but spent the vast majority of his time abroad in anticipation of his wife and daughter attaining legal immigrant status. These visits do not qualify as “temporary” and, by making them, Singh abandoned his legal permanent residency in the United States. See Huang, 19 I. & N. Dec. at 756 (permanent residency relinquished when family lived in Japan while waiting for husband to finish doctoral studies so they could all move to the United States);" }, { "docid": "23560369", "title": "", "text": "Mr. Justice Douglas delivered the opinion of the Court. Some aliens who have their homes in Canada or Mexico commute daily to places of employment in this country and others do so on a seasonal basis, a practice permitted by the Immigration and Naturalization Service. The question is whether the practice on the facts of these cases conforms with the Immigration and Nationality Act. It turns on the meaning of § 101 (a)(27.)(B), 66 Stat. 169, as amended, 79 Stat. 916, 8 U. S. C. § 1101 (a)(27)(B), which defines as one variety of “special immigrant” an immigrant “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” Those who qualify under § 1101 (a)(27)(B) may be permitted entry without the usual documentation requirements. 8 U. S. C. § T181 (b). The regulations implement § 1181 (b) by allowing such an immigrant to use an alien registration receipt card, normally called a “green card,” in lieu of an immigrant visa and without regard to numerical limitations if he is “returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding 1 year.” The Act presumes that an alien is an immigrant “until he establishes . . . that he is entitled to a nonimmigrant status”; and it defines “immigrant” as every alien who cannot bring himself into an enumerated class of non-immigrants. One class of nonimmigrants is “an alien having a residence in a foreign country which he has no intention of abandoning . . . (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.” An alien does not qualify as a nonimmigrant under this class of nonimmigrants if he seeks to perform temporary labor at a time when unemployed persons capable of performing that labor can be found in this country. If he cannot qualify as a nonimmigrant some other way, such an alien is subject to the Act’s numerical limitations, unless he is included in the" }, { "docid": "12500914", "title": "", "text": "decision in Saxbe v. Bustos applicable to a citizen of the Philippines who maintains a permanent home and job in the Philippines and visits the United States for a short period each year? 2. Does the Equal Protection Clause of the Constitution require that the Saxbe v. Bustos decision be extended to citizens of countries other than those contiguous to the United States? 3. On review of an action by the INS, may a district court substitute its own findings for the findings of an immigration judge? II. A “special immigrant” is defined in 8 U.S.C. § 1101(a)(27)(B) as “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad”. An earlier subsection of Section 1101 defines the term “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed”. 8 U.S.C. § 1101(a)(20). Under 8 U.S.C. § 1182(c), a “special immigrant” is allowed to enter the United States carrying only an 1-151 alien registration card and is not subject to visa or quota requirements. Both Saxbe v. Bustos, supra, and Gooch v. Clark, supra, were concerned with accommodating the long-standing INS practice of admitting daily and seasonal workers from Canada and Mexico as special immigrants to the requirements of the immigration statute. The primary difficulty in fitting commuter aliens into the special immigrant definition was the requirement that they be returning from a “temporary visit abroad”, since they were actually traveling from their unrelinquished homes each night or each season. However, the Supreme Court in Saxbe looked at the grant of special immigrant status for commuter aliens as a gloss on the statutory language of Section 1101(a)(27)(B), based largely on policy reasons behind allowing workers free access across this country’s borders. Specifically, the Court pointed to the national desire to maintain friendly relations with Canada and Mexico and to avoid burdening border communities in the United States with immigrants who, without the special status, would be forced to settle in" }, { "docid": "12500917", "title": "", "text": "Her yearly trips to the United States are for the avowed purpose of keeping her alien registration card current. Third, her home is not in a country contiguous to the United States, a prerequisite of alien commuter status. Appellee claims that this third requirement violates the Equal Protection Clause of the Constitution since it treats different classes of aliens in different ways. However, it is clear that classifications made under the immigration laws need only be supported by some rational basis to fulfill equal protection guarantees. Noel v. Chapman, 508 F.2d 1023 (2d Cir. 1975); Dunn v. Immigration and Naturalization Service, 499 F.2d 856 (9th Cir. 1974). The policy considerations articulated in Saxbe v. Bustos, supra, support special treatment for commuters from Canada and Mexico who are employed in the United States. We find no equal protection violation. III. In support of the district court’s grant of habeas corpus relief, appellee claims that she falls within the statutory definition of special immigrant without the gloss added by Saxbe and Gooch. Clearly, an immigrant need not be a commuter alien to warrant special immigrant treatment. However, to fit within the statutory definition, appellee must show that she is lawfully admitted for permanent residence and returning from a temporary visit abroad. Appellee fits the first condition as it is interpreted by Saxbe. In that case, the Supreme Court held that an immigrant is not required to maintain a permanent residence in the United States in order to have permanent residence status. It is undisputed that appellee was accorded the status of permanent residence in 1968 when she first entered this country with a third preference visa. There is nothing in the record to show whether that status has changed. The status of being “lawfully admitted for permanent residence” carries with it certain privileges — a privilege to remain in the United States indefinitely, a privilege to work in the United States, a privilege to reside permanently in the United States if one chooses, and a privilege to make temporary visits abroad. Appellee has chosen not to remain in the United States, not" }, { "docid": "23560371", "title": "", "text": "classes of “immediate relatives” of a United States citizen or “special immigrants.” On the other hand, as already noted, one variety of “special immigrant” is an alien “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” One who so qualifies is excluded from the labor certification provisions in 8 U. S. C. § 1182 (a) (14). The term “lawfully admitted for permanent residence” is defined as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant..., such status not having changed.” An alien achieves that status in the first instance by complying with any applicable numerical limitations and with the Act’s other requirements for admission, details not important here. After his initial admission on that basis, he is free to leave this country temporarily and to re-enter without regard to numerical limitations. The Act authorizes the Attorney General to re-admit such an alien without a visa or other formal documentation. § 1181 (b). He has exercised that authority, allowing such an immigrant to return with what was called in the briefs and oral argument the “green card.” This suit was brought by the United Farm Workers Organizing Committee for declaratory and injunctive relief against the practice of giving alien commuters the documentation and labor certification benefits of classification as immigrants “lawfully admitted for permanent residence” who are “returning from a temporary visit abroad.” The District Court dismissed the action without opinion. The Court of Appeals held that the admission of daily commuters was proper but that the admission of seasonal commuters was not, 156 U. S. App. D. C. 304, 481 F. 2d 479 (1973). We granted the petition and cross-petition in light of a conflict between the decision below and that of the Court of Appeals for the Ninth Circuit in Gooch v. Clark, 433 F. 2d 74 (1970). Our conclusions are that commuters are immigrants, that they are “lawfully admitted for permanent residence,” and that they are “returning from a temporary visit abroad” when they enter the United States. Moreover, the wording and legislative history" }, { "docid": "23560377", "title": "", "text": "admitted for permanent residence to the status of a nonimmigrant pursuant to 8 U. S. C. § 1257. 433 F. 2d, at 79. The status referred to in § 1101 (a) (20) is acquired when an alien satisfies (1) any numerical limitations on the entry of immigrants, (2) requirements as to qualitative matters such as health, morals, and economic status, and (3) the need for an immigrant visa. The applicant must also state whether he plans to remain in the United States permanently. But the Act does not declare or suggest that the status will be denied him, if he does not intend to reside permanently here. As we read the Act, the “status” acquired carries several important privileges: He may remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States. Thus we conclude that commuters are immigrants “lawfully admitted for permanent residence.” As did both the majority and dissent in Gooch, we also find that commuters can be viewed as “returning from a temporary visit abroad.” 433 F. 2d, at 79-81, 82 n. 1. The court below so agreed as respects daily commuters, disagreeing only as to seasonal commuters. Neither the court below nor the Court of Appeals in Gooch took the position now taken in dissent here. Our conclusion reflects the administrative practice, dating back at least to 1927 when the Bureau of Immigration was a part of the Department of Labor. In 1940 the Bureau was transferred to the Department of Justice where it remains today. On April 1,1927, it issued General Order No. 86. Under the order, commuters were required to gain admission as immigrants before they could have border crossing privileges. The order provides that “[a]liens who have complied with the requirements of this General Order governing permanent admission will be considered as having entered for permanent residence.” “Thus,” said the Court of Appeals in the instant cases, “the daily commuter was born,” 156 U. S." }, { "docid": "22193174", "title": "", "text": "visitor — painfully guileless acts for someone who intends merely to build an administrative record that he is a permanent resident — but then behaved like a permanent resident once inside the country by obtaining employment. He was waiting only for the single event of our government's approval of his family’s visa petition — before bringing them here as well. The last of the cases cited by the majority, Angeles v. District Director, 729 F.Supp. 479 (D.Md.1990), is not only factually distinguishable, but also directly contrary to the law of this circuit. In that case, the district court for the District of Maryland upheld the exclusion of a native Filipino who had spent nearly nine years in the Philippines caring for her ailing parents. Even after the death of her mother, the alien remained in the Philippines because her father, who \"wished to be near his wife's grave,” \"was depressed and unwilling to move to the United States.” Id. at 481. Because she did not wish to lose her status as a permanent resident, she would visit the family home in Maryland for one or two months each year. Id. A nine-year absence from the United States is, of course, far longer than the two-and-a-half year period at issue in the present case. Moreover, Singh’s presence was far more substantial and continued to increase over time, and as noted above, he engaged in work here. I would reject Angeles entirely, however, on the ground that it is simply wrong. The district court reasoned that ”[i]n order to exercise the privilege of leaving temporarily, an alien must have a United States residence on return.” Id. at 483. It is well established, however, that \"an immigrant is not required to maintain a permanent residence in the United States in order to have permanent residence status.\" Alvarez, 539 F.2d at 1224. It is permanent resident status that confers \"the privilege of establishing a permanent residence in the United States.” Saxbe v. Bustos, 419 U.S. 65, 72, 95 S.Ct. 272, 278, 42 L.Ed.2d 231 (1974). Angeles is also inconsistent with the law of this" }, { "docid": "22193175", "title": "", "text": "would visit the family home in Maryland for one or two months each year. Id. A nine-year absence from the United States is, of course, far longer than the two-and-a-half year period at issue in the present case. Moreover, Singh’s presence was far more substantial and continued to increase over time, and as noted above, he engaged in work here. I would reject Angeles entirely, however, on the ground that it is simply wrong. The district court reasoned that ”[i]n order to exercise the privilege of leaving temporarily, an alien must have a United States residence on return.” Id. at 483. It is well established, however, that \"an immigrant is not required to maintain a permanent residence in the United States in order to have permanent residence status.\" Alvarez, 539 F.2d at 1224. It is permanent resident status that confers \"the privilege of establishing a permanent residence in the United States.” Saxbe v. Bustos, 419 U.S. 65, 72, 95 S.Ct. 272, 278, 42 L.Ed.2d 231 (1974). Angeles is also inconsistent with the law of this circuit because it does not even purport to apply our rule that a trip is a “temporary visit abroad\" if it \"will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time.” Chavez-Ramirez, 792 F.2d at 937. The district court found \"substantial evidence that her visits would not have terminated until her father passed away or chose to and could lawfully emigrate to the United States.” Instead of considering whether there was a reasonable possibility that her \"aged and ill” father would soon pass away and that her trip might therefore be temporary, id. at 481, the district court simply cited the contingency of her father's death as evidence that her trip was not temporary. Id. at 484. Given both its inconsistency with the law of this circuit and its factual dissimilarity from the case at hand, Angeles does not provide much comfort or support to the majority." }, { "docid": "2849117", "title": "", "text": "to immigrants and the labor certification requirements applicable to H-2 workers. The Supreme Court adopted much of Gooch’s reasoning in Saxbe v. Bustos, 419 U.S. 65, 95 S.Ct. 272, 42 L.Ed.2d 231 (1974). In Saxbe the United Farm Workers Committee brought suit challenging the INS’s practice of allowing aliens to commute to places of employment in the United States on a daily or seasonal basis as “special immigrants.” The Court upheld the INS’s practice and reasoned that because “commuters” do not fall within any of the non-immigrant categories of section 1101(a)(15), they are immigrants. Id. at 71, 95 S.Ct. at 277. A “special immigrant” is “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” 8 U.S.C. § 1101(a)(27)(B). Section 1101(a)(20) defines “lawfully admitted for permanent residence,” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” This section 1101(a)(20) status is acquired when “an alien satisfies (1) any numerical limitations on the entry of immigrants, (2) requirements as to qualitative matters such as health, morals, and economic status, and (3) the need for an immigrant visa. The applicant must also state whether he plans to remain in the United States permanently.” Saxbe, 419 U.S. at 72, 95 S.Ct. at 277 (footnotes omitted). The INA does not state that the status will be denied him if he does not intend to reside permanently in the United States. Id. “[T]he status acquired carries several important privileges: [the commuter] may remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States.” Id. Relying on the reasoning of Gooch, the Court found that a “commuter’s” nightly or seasonal departure from the United States to his foreign residence is a “temporary visit abroad” from which he returns when he reenters the United States for employment. Id. Finally, in concluding that" }, { "docid": "23560396", "title": "", "text": "is returning from a temporary visit abroad.” 8 U. S. C. § 1101 (a) (27) (B). The included phrase “lawfully admitted for permanent residence” means in turn “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” §1101 (a) (20). The immigration laws define “perma nent residence” as “the place of general abode,” a person’s “principal, actual dwelling place in fact, without regard to intent,” § 1101 (a) (33), with the relationship of the person to the place of residence being “of continuing or lasting nature, as distinguished from temporary . . . §1101 (a) (31). Under the Immigration and Naturalization Service’s own regulations, in order to be exempt from the normal documentation requirements upon entry, an alien must be returning to his “unrelin-quished lawful permanent residence” from a “temporary absence abroad.” 8 CFR §211.1 (b)(1). On its face, the present practice of the Service is flatly contrary to its own regulation. Confronted with the obvious difficulty that this statutory language defining permanent resident status and the regulations will not accommodate the daily and seasonal commuters, the majority, without the aid of legislative history, contends that these plain words should be given special, technical meanings: “Section 1101 (a) (20) defines ‘lawfully admitted for permanent residence’ as ‘the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed’ (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed.” Ante, at 71 (italics supplied by the Court). The use of italics will not alter the ordinary meaning of the statutory terminology, however, and the Court gives no basis for believing that Congress intended something other than the ordinary meaning of the words it used. No one could reasonably suggest that Congress was seeking to accommodate the commuters when it enacted" } ]

[ { "docid": "22182734", "title": "", "text": "grouping” (emphasis added). The subjunctive (“would”) indicates a contrary-to-fact condition. When offenses are “of a character” described in § 3D1.2(d) — that is, when the base offense score depends on the quantity sold, stolen, etc. — and when these offenses “would” be grouped in the event of conviction, then the amounts are added whether or not there has been a conviction. Any doubt left by the text is resolved by Application Note 2, specifying that “multiple convictions are not required.” The Sentencing Commission’s application notes are contemporaneous explanations of the Guidelines by their authors, entitled to substantial weight. United States v. Pinto, 875 F.2d 143, 144 (7th Cir.1989). The “Background” information supplied by the Commission at Guidelines Manual 1.19 (Jan.1988) reiterates the point. “The distinction is made on the basis of § 3D1.2(d), which provides for grouping ... all counts charging offenses of a type covered by this subsection. However, the applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged.” The Commission then offers a reason for departing from charge-offense sentencing: crimes “often involve a pattern of misconduct that cannot readily be broken into discrete, identifiable units that are meaningful for purposes of sentencing.” Indeed so. Embezzlers may filch $200 per day or drug dealers sell 30 grams per day; the number of counts into which the offense is broken (and how many of them the prosecutor elects to charge and press) have almost nothing to do with the seriousness of the offense, which depends on total quantity. To treat likes alike, the Commission sums up repeated sales. Anything else allows what is fundamentally the same conduct to get very different treatment according to how the offense is parcelled among counts, an essentially arbitrary choice. Yet the Commission recognized that the goal of equivalence could not be pressed too far without embroiling the courts in studies of defendants’ entire lives. Thus the limit in § 1B1.3(a)(2) to transactions that “were part of the same course of conduct or common scheme or plan as the offense of conviction”. The rule of lenity is a tie-breaker when there" } ]

[ { "docid": "23371142", "title": "", "text": "alleged.”); United States v. Alfonso Blanco, 888 F.2d 907 (1st Cir.1989) (Guideline § lB1.3(a)(2)’s cross reference to § 3D1.2(d)’s multiple counts requirement “is designed only to pick out a certain subset of crimes, namely the subset of ‘fungible item’ crimes, such as those involving drugs and money ... ”) (emphasis supplied). Thus, according to this court and at least six others, the scope of inquiry in drug cases such as the instant one is solely whether “quantities and types of drugs not specified in the act of conviction are ... part of the same course of conduct or common scheme or plan as the offense of conviction.” Background Guideline § 1B1.3(a)(2). See generally, United States v. White, 888 F.2d 490 (7th Cir.1989) (citing cases). But see United States v. Restrepo, 883 F.2d 781, 786 (9th Cir.1989) (quantities not specified in act of conviction may not be used in computing base offense level). Had DEA agents discovered three kilograms of cocaine in Gerante’s residence, the above analysis, as well as precedent from at least one other circuit, see Sarasti, 869 F.2d at 807, would support the district court’s determination that this quantity of drugs should be considered as a part of Gerante’s relevant conduct for the purpose of establishing his base offense level. Instead, DEA agents discovered $68,000 in cash, which the district court found Ger-ante had received in payment for a quantity of drugs, specifically three kilograms. The issue therefore is whether the Guidelines permitted the district court to treat the money found at Gerante’s residence as the equivalent of an estimated quantity of drugs for the purpose of holding Gerante accountable for his relevant conduct under § 1B1.3(a)(2). Fortunately, the Commentary and Application notes to the Guidelines provide specific direction on this issue. Commentary Note 11 to § 2D1.1 states in part that “If the amount seized does not reflect the scale of the offense, [then] see Application Note 2 of the Commentary to § 2D1.4.” Application Note 2 of the Commentary to § 2D1.4 states that [wjhere there is no drug seizure or the amount seized does not" }, { "docid": "18825067", "title": "", "text": "that some unconvicted conduct may be used to elevate a defendant’s offense level. Under § lB1.3(a)(2), offense conduct and adjustments to the offense level are determined “solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction....” We have interpreted this section to mean that when the Guidelines provide tables that cumulate the amount sold or stolen, any acts that “were part of the same course of conduct or common scheme or plan as the offense of conviction” should be included in the computation of the amount on which the offense level depends, whether or not the defendant was convicted of selling or stealing these additional amounts. United States v. White, 888 F.2d 490, 497 (7th Cir.1989) (quoting U.S.S.G. § lB1.3(a)(2)). The cross-reference to the multiple-count grouping provision, therefore, is designed to encompass only particular offenses of a character for which the multiple-count rules would require grouping. These are acts for which the Guidelines, for the most part, base an offense level on quantity. See United States v. Atterson, 926 F.2d 649, 660 (7th Cir.) (stating that “when the Guidelines provide tables that cumulate the amount sold or stolen,” acts that are part of the same course of conduct as the conviction are to be included in the calculation of the offense level, without reference to conviction) (citing White, 888 F.2d at 497), cert. denied sub nom. Laurelez v. United States, — U.S. -, 111 S.Ct. 2909, 115 L.Ed.2d 1072 (1991); see also U.S.S.G. § 1B1.3, Background. As Chief Judge Breyer of the First Circuit has noted, other crimes for which sentencing is not based on fungible quantities and for which a defendant has not been convicted, such as murder or bank robbery, are not included in the calculation of the offense level “unless the government separately charges and obtains conviction for these acts.” United States v. Blanco, 888 F.2d 907, 911 (1st Cir.1989) (noting with approval the decision" }, { "docid": "7841859", "title": "", "text": "which the court has incorrectly applied the Guidelines or imposed the sentence “in violation of the law.” 18 U.S.C. § 3742(a)(1) & (2). This case is within neither category. Discretionary judgments of the sort the court made here are not subject to appellate review. See United States v. Dukes, 936 F.2d at 1284; United States v. Jamison, 934 F.2d 371, 372 (D.C.Cir.1991); United States v. Hazel, 928 F.2d 420, 424 (D.C.Cir.1991); United States v. Ortez, 902 F.2d 61, 63-64 (D.C.Cir.1990). Affirmed. Section IB 1.3(a) provides in pertinent part: [T]he base offense level where the guideline specifies more than one base offense level ... shall be determined on the basis of the following: (1) all acts and omissions committed or aided and abetted by the defendant or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense; (2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction; Salmon’s \"relevant conduct” fell within § lB1.3(a)(2), making his base offense level dependent not only on the offense of conviction, but also upon any \"acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” As Judge Breyer explained, the \"guideline relevant [in a drug trafficking] case, § 2D 1.1, is a guideline that has many different hase offense levels,’ each correlated with a different amount of drug_ A glance at the relevant cross-reference in the ‘multiple-count’ guideline, § 3D1.2(d), reveals § 2D1.1 listed there as a ‘fungible items’ crime.” United States v. Blanco, 888 F.2d 907, 909 (1st Cir.1989) (citation omitted)." }, { "docid": "17469483", "title": "", "text": "long as one or the other of the add-ons was appropriately included. In light of this concession, our task is effectively halved. Since we find that the lower court’s inclusion of the negotiated kilogram was irreproachable, see infra, we can safely eschew consideration of whether defendant’s antecedent drug dealings totalled 714 grams or involved the same course of conduct as the counts of conviction. After all, when correction of a finding would not change the applicable offense level or affect the sentencing range, any error therein would necessarily be harmless. Accord United States v. Sciarrino, 884 F.2d 95, 98 (3d Cir.), cert. denied, — U.S. -, 110 S.Ct. 553, 107 L.Ed.2d 549 (1989). The Missing Kilogram In this type of ease, a key datum in constructing defendant’s sentence is the quantity of narcotics attributable to him for sentencing purposes, a datum bounded initially by the sum of the charged conduct to which the defendant pleads plus his “relevant” uncharged conduct. See U.S.S.G. § lB1.3(a)(2). Put another way, “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or ... common scheme or plan as the count of conviction.” U.S. S.G. § lB1.3(a)(2) comment, (backg’d). We painstakingly explained the operation of this principle in United States v. Blanco, 888 F.2d 907, 908-11 (1st Cir.1989), and will not rehearse that discussion here. Suffice to say that every court to consider the issue, including this one, has concluded that an amount of drugs which a defendant negotiates to sell may be considered as relevant conduct for base offense level purposes even if the drugs are never produced. See, e.g., United States v. Alston, 895 F.2d 1362, 1371-72 (11th Cir.1990); United States v. Garcia, 889 F.2d 1454, 1456 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); Blanco, 888 F.2d at 909; United States v. Perez, 871 F.2d 45, 48 (6th Cir.), cert. denied, — U.S. -, 109 S.Ct. 3227, 106 L.Ed.2d 576" }, { "docid": "12646512", "title": "", "text": "Second, the commentary may suggest circumstances which, in the view of the Commission, may warrant departure from the guidelines. Such commentary is to be treated as the legal equivalent of a policy statement. Guidelines at 1.22 (emphasis added) (citation omitted). The commentary to § 1B1.7 goes on to say that: [I]n seeking to understand the meaning of the guidelines courts likely will look to the commentary for guidance as an indication of the intent of those who wrote them. In such instances, the courts will treat the commentary much like legislative history or other legal material that helps determine the intent of a drafter. See United States v. Gross, 897 F.2d 414, 416 (9th Cir.1990) (application notes are advisory commentary to assist in the application of the statute); United States v. Anderson, 895 F.2d 641, 645 (9th Cir.1990) (like legislative history, commentary helps to determine Commission’s intent). The Sentencing Commission’s intent is clear: Amounts of drugs calculated on the basis of conduct of which the defendant is neither charged nor convicted but that were “part of the same course of conduct or common scheme or plan as the offense of conviction” may properly be used to adjust the offense level. Three circuits have so held after explicitly discussing the relationship between the relevant conduct rules and the multiple counts rules. United States v. Alston, 895 F.2d 1362, 1371-72 (11th Cir.1990); United States v. Blanco, 888 F.2d 907, 909-11 (1st Cir.1989); United States v. White, 888 F.2d 490, 496-97 (7th Cir.1989). See United States v. Vopravil, 891 F.2d 155, 157 (7th Cir.1989); United States v. Gerante, 891 F.2d 364, 369 (1st Cir.1989) (drugs also may be aggregated when government alleges only one count). In Blanco, Judge Breyer explained that in the relevant conduct section, the reference to the multiple counts section is designed only to pick out a certain subset of all crimes, namely the subset of “fungible item” crimes, such as those involving drugs and money, which are listed specifically in the cross-referenced multiple count subsection.... It is these crimes in respect to which the Commission has said that courts" }, { "docid": "17469484", "title": "", "text": "of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or ... common scheme or plan as the count of conviction.” U.S. S.G. § lB1.3(a)(2) comment, (backg’d). We painstakingly explained the operation of this principle in United States v. Blanco, 888 F.2d 907, 908-11 (1st Cir.1989), and will not rehearse that discussion here. Suffice to say that every court to consider the issue, including this one, has concluded that an amount of drugs which a defendant negotiates to sell may be considered as relevant conduct for base offense level purposes even if the drugs are never produced. See, e.g., United States v. Alston, 895 F.2d 1362, 1371-72 (11th Cir.1990); United States v. Garcia, 889 F.2d 1454, 1456 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); Blanco, 888 F.2d at 909; United States v. Perez, 871 F.2d 45, 48 (6th Cir.), cert. denied, — U.S. -, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989); see also United States v. ValleSanchez, 912 F.2d 424, 426 (10th Cir.1990) (guidelines “permit inclusion of amounts which a defendant agrees to sell but ... does not deliver”) (dicta). One pillar upon which these rulings rest has been sculpted by the Sentencing Commission, which wrote: If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation that amount that it finds the defendant did not intend to produce and was not reasonably capable of producing. U.S.S.G. § 2D1.4, comment, (note 1). This line of reasoning has consistently been applied not just to persons convicted of conspiracy or attempt, but to persons found guilty of substantive narcotics offenses. See, e.g., Garcia, 889 F.2d at 1456-57; United States v. White, 888 F.2d 490, 497" }, { "docid": "23236465", "title": "", "text": "the total quantity of cocaine involved in the “same course of conduct or common scheme or plan as the offense of conviction” under Sentencing Guidelines § 1B1.3(a)(2). In so doing, we join six out of seven circuits that have addressed this question. See United States v. Blanco, 888 F.2d 907 (1st Cir.1989); United States v. White, 888 F.2d 490 (7th Cir.1989); United States v. Fernandez, 877 F.2d 1138 (2d Cir.1989); United States v. Mann, 877 F.2d 688 (8th Cir.1989); United States v. Sailes, 872 F.2d 735 (6th Cir.1989); United States v. Sarasti, 869 F.2d 805 (5th Cir.1989). Cf., United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989) (upholding district court’s consideration of 18 postal thefts to which defendant did not plead guilty and for which government agreed to drop charges, as conduct relevant in calculating a sentence). But see United States v. Restrego, 883 F.2d 781 (9th Cir.1989) (forbidding sentencing consideration of drug amounts not reflected in the offense of conviction). The facts at issue in the Blanco decision are almost identical to those involved in this case. Mr. Blanco pled guilty to possessing with intent to distribute 125 grams of cocaine. The government recommended dismissal of other counts which charged Blanco with conspiring to distribute a larger amount of cocaine during the same time period he possessed with intent to distribute the 125 grams of cocaine. Just as appellant Brennon asserts in this case, Mr. Blanco argued that the Guidelines do not permit a sentencing judge to take into account conduct not covered by the counts of conviction. The Blanco court analyzed the question as follows: [Defendant Blanco] notes that the additional drugs in question here were not covered by Counts I, II and III, to which he pled guilty, but, rather, they were the subject of other counts of the indictment (Counts IV, V, and VI), which the Government dropped. The Guidelines, however, specifically instruct the court to take conduct of this sort into account when the crime at issue concerns drugs. They say that: (i) [T]he base offense level where the guideline specifies more than one base" }, { "docid": "21544774", "title": "", "text": "the offense of which the defendant is convicted but that is of the type that would have been a factor in calculation of his offense level had he been convicted of that as well. It states that, unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level ... shall be determined on the basis of the following: (2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. Id. § lB1.3(a) (amended in nonmaterial respect effective Nov. 1, 1989). The background commentary to this section states that “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” Id. § 1B1.3 commentary. As we observed in United States v. Fernandez, 877 F.2d 1138 (2d Cir.1989), these provisions bespeak a preference for realistic, rather than formalistic, appraisal of a given defendant’s offense. That is, the district judge is authorized to sentence a defendant “upon the facts of the actual offense (known as ‘real offense’ sentencing)” as opposed to merely “the offense for which he was charged and convicted (upon the ‘charge offense,’ ... ).” Id. at 1141; see also United States v. Guerrero, 863 F.2d 245, 248 (2d Cir.1988). “[T]his ‘real offense’ approach keys the sentence to the real harm posed by the offense,.... ” United States v. Fernandez, 877 F.2d at 1142; see also Guidelines Ch. 1, Pt. A, n. 4(a); accord United States v. Blanco, 888 F.2d 907, 909 (1st Cir.1989) (Breyer, J.) (reference to “relevant conduct” in certain cases “reflects a compromise that the Sentencing Commission made among considerations that favor a ‘real offense’ sentencing system and those that favor a ‘charge offense’ system”). Recognizing the preference for “real offense”" }, { "docid": "22936443", "title": "", "text": "guideline range: “After determining the appropriate offense guideline section pursuant to [§ lB1.2(a)], determine the applicable guideline range in accordance with § 1B1.3 (Relevant Conduct).” Id. § lB1.2(b). Section 1B1.3 indicates that, in determining the guideline range for distribution of cocaine, the district court was not restricted only to the quantity associated with the offense of conviction. In determining the guideline range applicable to this drug offense, which would require the grouping of multiple counts under § 3D1.2(d), relevant conduct includes “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Guidelines, § 1B1.3(a)(2). We turn next to the commentary to the Guidelines, which we consider essential in correctly interpreting and uniformly applying the guidelines on a national basis. 18 U.S.C. § 3553(a)(5); Fed.R.Crim.P. 32(c)(2)(C); Guidelines § 1B1.7; United States v. Anderson, 895 F.2d 641, 647 (9th Cir.1990) (Kozinski, J., dissenting) (commentary is an integral portion of the Guidelines and is entitled to more deference than legislative history or other secondary source); United States v. Smeathers, 884 F.2d 363, 364-65 (8th Cir.1989); United States v. Ofchinick, 877 F.2d 251, 257 (3rd Cir.1989). The commentary to the Guidelines could not be any clearer: “[I]n a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” Guidelines, commentary to § 1B1.3 at 1.19. Accord id., commentary to § 2D1.1, application n. 11 (“Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.”). Thus, under the Sentencing Guidelines, the district court properly considered quantities associated with not only the offense of conviction, but also those quantities which facilitated the commercial relationship between the defendant as drug dealer and the DEA agent as drug purchaser. In United States v. Shorteeth, 887 F.2d 253, 255 (10th Cir.1989), we recognized that overall quantity of drugs" }, { "docid": "22153673", "title": "", "text": "same course of conduct or ... common scheme or plan as the count of conviction.” Id., commentary (backg’d); accord United States v. Restrepo, 903 F.2d 648, 653 (9th Cir.1990); United States v. Blanco, 888 F.2d 907, 910 (1st Cir.1989); United States v. White, 888 F.2d 490, 498 (7th Cir.1989); United States v. Taplette, 872 F.2d 101, 105 (5th Cir.), cert. denied, _ U.S. _, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989). We painstakingly explained the mechanical operation of this model in Blan-co, 888 F.2d at 909-11, and therefore refrain from repastinating ground already well ploughed. To bring uncharged conduct into play, the government must establish a sufficient nexus between the conduct and the offense of conviction. See United States v. Mocciola, 891 F.2d 13, 15 (1st Cir.1989); United States v. Fox, 889 F.2d 357, 360-61 (1st Cir.1989). The government’s burden is to prove the nexus by a preponderance of the evidence. See Mocciola, 891 F.2d at 15; Blanco, 888 F.2d at 909. The rules of trial evidence do not apply; in weighing the facts the sentencing court may evaluate virtually any dependable information. See U.S.S.G. § 6A1.3 (sentencing court may consider all pertinent information which has “sufficient indicia of reliability to support its probable accuracy”); see also United States v. Bradley, 917 F.2d 601, 605 (1st Cir.1990); Blanco, 808 F.2d at 908-09; Wright, 873 F.2d at 441. On appeal, the sentencing court’s finding that drugs other than those specified in the indictment were part of the same conduct/scheme/plan is entitled to considerable deference. See Diaz-Villafane, 874 F.2d at 48; Wright, 873 F.2d at 443-44; see also 18 U.S.C. § 3742(d). Absent mistake of law, we review such conclusions only for clear error and will not disturb supported findings unless our scrutiny of the record convinces us that a serious mistake was made. See United States v. Gooden, 892 F.2d 725, 729 (8th Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 2594, 110 L.Ed.2d 274 (1990); Mocciola, 891 F.2d at 16. In terms of a drug case, relevance depends upon the existence and scope of a single course of conduct, scheme," }, { "docid": "23365983", "title": "", "text": "parts and charging each part separately in a different count. The source of confusion may be the fact that the “same course of con duct/scheme/plan” subsection (§ 1B1.-3(a)(2), quoted above) begins with a cross-reference to the multiple count rules. But this cross reference is designed only to pick out a certain subset of all crimes, namely the subset of “fungible item” crimes, such as those involving drugs and money, which are listed specifically in the cross-referenced multiple count subsection. (It picks them out by referring to “offenses of a character for which” this part of the multiple count rules “would require grouping” if the multiple count rules happened to be applicable (emphasis added).) It is these crimes in respect to which the Commission has said that courts should punish convicted defendants by taking into account all the drugs or money that form part of the same conduct, scheme or plan. In respect to other crimes, such as murder or bank robbery, the courts will not use § 1B1.3(a)(2) to look to acts that are part of the “same course of conduct or common scheme or plan” (though sometimes such acts could fall within some other part of the “relevant conduct” guideline, such as § lB1.3(a)(l), governing conduct that occurred during “preparation for,” “commission of” or a cover-up of, the offense of conviction), unless the government separately charges and obtains conviction for these acts. The reason the Commission has drawn this kind of line reflects the “compromise” between “real offense” and “charge offense” sentencing that we mentioned above, see pp. 909-10, supra. The placing of this “line” arises from (1) the Commission’s analysis of how courts tended to sentence in the past and (2) its weighing, in respect to different kinds of crimes and different ways of committing those crimes, of the considerations for, and against, real offense sentencing. (These matters are described more fully in the Guidelines Introduction, ch. 1, and in Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 Hofstra L.Rev. 1, 8-12 (1988). The Seventh Circuit has explained these matters clearly in" }, { "docid": "22153672", "title": "", "text": "periodic mailings to Sklar from a fictitious entity at a series of fictitious addresses were of the same ilk as the package actually intercepted. Concluding that all the mailings were part of a common scheme and estimating the quantity of contraband involved, the court found that defendant had handled upward of 300 grams of cocaine in an uninterrupted course of criminal conduct. B. What Is Relevant Conduct? Under the sentencing guidelines as they relate to most narcotics cases, the base offense level — a critical datum in arriving at the GSR — is predicated in large part on the amount of drugs involved. The drug quantity is derived from all acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction,” whether or not charged in the indictment. U.S.S.G. § 1B1.3(a)(2). This means that “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or ... common scheme or plan as the count of conviction.” Id., commentary (backg’d); accord United States v. Restrepo, 903 F.2d 648, 653 (9th Cir.1990); United States v. Blanco, 888 F.2d 907, 910 (1st Cir.1989); United States v. White, 888 F.2d 490, 498 (7th Cir.1989); United States v. Taplette, 872 F.2d 101, 105 (5th Cir.), cert. denied, _ U.S. _, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989). We painstakingly explained the mechanical operation of this model in Blan-co, 888 F.2d at 909-11, and therefore refrain from repastinating ground already well ploughed. To bring uncharged conduct into play, the government must establish a sufficient nexus between the conduct and the offense of conviction. See United States v. Mocciola, 891 F.2d 13, 15 (1st Cir.1989); United States v. Fox, 889 F.2d 357, 360-61 (1st Cir.1989). The government’s burden is to prove the nexus by a preponderance of the evidence. See Mocciola, 891 F.2d at 15; Blanco, 888 F.2d at 909. The rules of trial evidence do not apply; in weighing the facts the" }, { "docid": "17323697", "title": "", "text": "adjustments in Chapter Three, shall be determined on the basis of the following: * * # * * % (2) solely with respect to offenses of a character for which § 3D 1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction; * * * (emphasis added) Under section 2D1.1(b)(1), the base sentence level of the offense for which Thomas was convicted — possession of amphetamine — is determined largely by the quantity of the controlled substance involved. As such, section 3D1.2(d) is applicable and would require grouping of multiple counts for sentencing purposes. Relevant conduct for offenses to which section 3D1.2(d) applies is governed by section lB1.3(a)(2) which allows the court to consider “all such acts or omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” It is clear that section lB1.3(a)(2) allows the court to consider conduct that is related to but not strictly a part of the offense of conviction when determining the base sentence level and whether specific offense characteristics are applicable. This court has recently held that section 1B1.3(a)(2) allows the trial court to compute a defendant’s base sentence level by aggregating the amount of drugs involved in the offense of conviction with amounts of drugs involved in related but uncharged conduct. United States v. Woolford, 896 F.2d 99, 102-03 (5th Cir.1990). This Circuit is not alone in so holding. See United States v. Blanco, 888 F.2d 907 (1st Cir.1989); United States v. Bedoya, 878 F.2d 73 (2nd Cir.1989); United States v. Williams, 880 F.2d 804 (4th Cir.1989); United States v. Sailes, 872 F.2d 735 (6th Cir.1989); United States v. White, 888 F.2d 490 (7th Cir.1989); United States v. Allen, 886 F.2d 143 (8th Cir.1989); United States v. Rutter, 897 F.2d 1558 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990); United States v. Wilson, 884 F.2d 1355 (11th Cir.1989). Guidelines section 1B1.3 applies equally to determination of" }, { "docid": "12646511", "title": "", "text": "is convicted may be considered. There is no inconsistency, therefore, when another provision mandates adding quantities of drugs from “the same course of conduct or part of a common scheme or plan as the count of conviction.” See Guidelines § 1B1.3, commentary at 1.19; see also United States v. Ruelas-Armenta, 684 F.Supp. 1048, 1051 (C.D.Cal.1988). The relevant conduct section explicitly indicates that the aggregation is to occur only with respect to offenses that are subject to grouping under the multiple counts section of the Guidelines. This explicit cross-reference demonstrates that the two sections were intended to operate in conjunction, and are not in conflict. Accepting Restrepo’s interpretation would require us to ignore the commentary to the Guidelines. We decline to do so. As the Guidelines authoritatively declare: The Commentary that accompanies the guideline sections may serve a number of purposes. First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. Second, the commentary may suggest circumstances which, in the view of the Commission, may warrant departure from the guidelines. Such commentary is to be treated as the legal equivalent of a policy statement. Guidelines at 1.22 (emphasis added) (citation omitted). The commentary to § 1B1.7 goes on to say that: [I]n seeking to understand the meaning of the guidelines courts likely will look to the commentary for guidance as an indication of the intent of those who wrote them. In such instances, the courts will treat the commentary much like legislative history or other legal material that helps determine the intent of a drafter. See United States v. Gross, 897 F.2d 414, 416 (9th Cir.1990) (application notes are advisory commentary to assist in the application of the statute); United States v. Anderson, 895 F.2d 641, 645 (9th Cir.1990) (like legislative history, commentary helps to determine Commission’s intent). The Sentencing Commission’s intent is clear: Amounts of drugs calculated on the basis of conduct of which the defendant is neither charged nor convicted but that were “part" }, { "docid": "12647233", "title": "", "text": "of conduct as the offense of conviction. See U.S.S.G. § 1B1.3(a)(2) (Jan. 15,1988). The commentary to the Guidelines explicitly indicates that “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” Id. at comment (background); see also U.S.S.G. § 2D1.1, commentary (n. 11) (Jan. 15, 1988) (“Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.”) (citing U.S. S.G. § 1B1.3(a)(2)). On the basis of these Guidelines provisions, we have held that the base offense level is to be calculated after taking into account the entire quantity involved in the defendant’s demonstrated narcotics activity rather than a smaller amount for which the defendant has been charged and convicted. See United States v. Bedoya, 878 F.2d 73, 75 (2d Cir.1989); United States v. Fernandez, 877 F.2d 1138, 1141-42 (2d Cir.1989); United States v. Guerrero, 863 F.2d at 250; see also United States v. Alston, 895 F.2d 1362, 1371 (11th Cir.1990) (holding that quantities of drugs not included in count of conviction are properly included in sentencing calculations and noting that in so holding the Eleventh Circuit “join[s] six out of seven circuits that have addressed this question”). Accordingly, the fact that the additional amounts of cocaine that Schaper traded were not charged in the indictment is not dispositive. If such additional amounts of cocaine were part of a scheme or plan common with the counts of Seha-per’s conviction, they are relevant conduct under either Judge Haight’s narrow view of the indictment or the government’s more expansive view of the charge in the case. Judge Haight noted that the cases cited above involved amounts of drugs that were actually seized from defendants even if they were not charged in the indictment. See Bedoya, 878 F.2d at 74-75 (total of 21 kilograms of cocaine seized from defendant and eoconspirator); Fernandez, 877 F.2d at 1139" }, { "docid": "12646513", "title": "", "text": "of the same course of conduct or common scheme or plan as the offense of conviction” may properly be used to adjust the offense level. Three circuits have so held after explicitly discussing the relationship between the relevant conduct rules and the multiple counts rules. United States v. Alston, 895 F.2d 1362, 1371-72 (11th Cir.1990); United States v. Blanco, 888 F.2d 907, 909-11 (1st Cir.1989); United States v. White, 888 F.2d 490, 496-97 (7th Cir.1989). See United States v. Vopravil, 891 F.2d 155, 157 (7th Cir.1989); United States v. Gerante, 891 F.2d 364, 369 (1st Cir.1989) (drugs also may be aggregated when government alleges only one count). In Blanco, Judge Breyer explained that in the relevant conduct section, the reference to the multiple counts section is designed only to pick out a certain subset of all crimes, namely the subset of “fungible item” crimes, such as those involving drugs and money, which are listed specifically in the cross-referenced multiple count subsection.... It is these crimes in respect to which the Commission has said that courts should punish convicted defendants by taking into account all the drugs or money that form part of the same conduct, scheme or plan. In respect to other crimes, such as murder or bank robbery, the courts will not use § 1B1.3(a)(2) to look to acts that are part of the “same course or conduct or common scheme or plan” ... unless the government separately charges and obtains conviction for these acts. Blanco, 888 F.2d at 911 (emphasis in original). Five other circuits have allowed aggregation of amounts of drugs not included in the count or counts of conviction, without considering any possible conflict with the multiple counts rules of the Guidelines. See United States v. Smith, 887 F.2d 104, 106-08 (6th Cir.1989); United States v. Mann, 877 F.2d 688, 690 (8th Cir.1989); United States v. Sailes, 872 F.2d 735, 738-39 (6th Cir.1989); United States v. Taplette, 872 F.2d 101, 106 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989); United States v. Guerrero, 863 F.2d 245, 250 (2d Cir.1988). We" }, { "docid": "23365982", "title": "", "text": "877 F.2d 688, 690 (8th Cir.1989), United States v. Scroggins, 880 F.2d 1204, 1211-12 (11th Cir.1989) — the Ninth Circuit does not. United States v. Restrepo, 883 F.2d 781 (9th Cir.1989). In Restrepo the Ninth Circuit held that a district court could not increase a defendant’s sentence by taking account of drugs that were not the subject of the counts of conviction (though they were part of the same course of conduct, scheme or plan). The court apparently thought that the Guidelines’ “multiple count” rules made consideration of these other drugs inappropriate. (The additional drugs were the subject of other counts with which one of Restrepo’s code-fendants, but not Restrepo, was charged.) It is the relevant conduct rules, however, not the multiple count rules, that make this additional conduct relevant to sentencing. The multiple count rules may seem to deal with the same subject, but they do so only insofar as they are written to prevent prosecutors or courts from reaching a different sentencing result simply by dividing a course of drug-related conduct into several parts and charging each part separately in a different count. The source of confusion may be the fact that the “same course of con duct/scheme/plan” subsection (§ 1B1.-3(a)(2), quoted above) begins with a cross-reference to the multiple count rules. But this cross reference is designed only to pick out a certain subset of all crimes, namely the subset of “fungible item” crimes, such as those involving drugs and money, which are listed specifically in the cross-referenced multiple count subsection. (It picks them out by referring to “offenses of a character for which” this part of the multiple count rules “would require grouping” if the multiple count rules happened to be applicable (emphasis added).) It is these crimes in respect to which the Commission has said that courts should punish convicted defendants by taking into account all the drugs or money that form part of the same conduct, scheme or plan. In respect to other crimes, such as murder or bank robbery, the courts will not use § 1B1.3(a)(2) to look to acts that are part" }, { "docid": "12646514", "title": "", "text": "should punish convicted defendants by taking into account all the drugs or money that form part of the same conduct, scheme or plan. In respect to other crimes, such as murder or bank robbery, the courts will not use § 1B1.3(a)(2) to look to acts that are part of the “same course or conduct or common scheme or plan” ... unless the government separately charges and obtains conviction for these acts. Blanco, 888 F.2d at 911 (emphasis in original). Five other circuits have allowed aggregation of amounts of drugs not included in the count or counts of conviction, without considering any possible conflict with the multiple counts rules of the Guidelines. See United States v. Smith, 887 F.2d 104, 106-08 (6th Cir.1989); United States v. Mann, 877 F.2d 688, 690 (8th Cir.1989); United States v. Sailes, 872 F.2d 735, 738-39 (6th Cir.1989); United States v. Taplette, 872 F.2d 101, 106 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989); United States v. Guerrero, 863 F.2d 245, 250 (2d Cir.1988). We hold that the district judge properly added the amount of drugs involved in counts III and IV and the amount that DeMaldonado turned in to the drugs involved in Restrepo’s counts of conviction, counts I and II. Such aggregation reflects the balance struck by the Sentencing Commission between a “real offense” sentencing system — one that takes into account the defendant’s real conduct, rather than simply the conduct for which he or she is charged — and a “charge offense” system, under which only the conduct of which the defendant is charged may be taken into account at sentencing. See Blanco, 888 F.2d at 909-11. It also is consistent with the pre-Guidelines sentencing practice of district judges, who often took into account information regarding other behavior for which the defendant had not been convicted. See White, 888 F.2d at 498; Smith, 887 F.2d at 108 n. 5. Although before the Guidelines the sentencing judge had discretion to decide how much weight to give that information, and under the Guidelines the judge is bound to increase" }, { "docid": "23365976", "title": "", "text": "Cir.1989) (government must prove facts relied on in sentencing by “preponderance of evidence”); United States v. Lee, 818 F.2d 1052, 1057 (2d Cir.1987), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987) (adopting preponderance standard for disputed allegations in presentencing report). See also Guidelines § 6A1.3 (court may consider all relevant information that has “sufficient indicia of reliability to support its probable accuracy”); McMillan, 477 U.S. at 92, 106 S.Ct. at 2419 (“Sentencing courts necessarily consider the circumstances of an offense in selecting the appropriate punishment”); United States v. Marshall, 719 F.2d 887, 891 (7th Cir.1983) (sentencing court may consider relevant information it could reasonably believe to be reliable where defendant given opportunity to rebut information). 2. Blanco next argues that the Guidelines do not permit a sentencing judge to take into account conduct, such as the possession (or attempted possession) of additional drugs, not covered by the counts of conviction. He notes that the additional drugs in question here were not covered by Counts I, II and III, to which he pled guilty, but, rather, they were the subject of other counts of the indictment (Counts IV, V, and VI), which the Government dropped. The Guidelines, however, specifically instruct the court to take conduct of this sort into account when the crime at issue concerns drugs. They say that (i) [T]he base offense level where the guideline specifies more than one base offense level ... shall be determined on the basis of the following: ... (2) solely with respect to offenses of a character for which § 3D1.2(d) [the “fungible items/drugs/money” part of the “multiple counts” guideline] would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. Guidelines § lB1.3(a) (emphasis added). Let us apply this language mechanically: (1) The drug guideline relevant to this case, § 2D1.1, is a guideline that has many different “base offense levels,” each correlated with a different amount of drug (e.g., the “base offense level” corresponding to “500 grams to" }, { "docid": "23371141", "title": "", "text": "character for which § 3D1.2(d) would require grouping of multiple counts, [as] all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. ... Thus, if an offense is one “of a character for which § 3D1.2(d) would require grouping of multiple counts,” then the defendant’s relevant conduct includes “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Turning to § 3D1.2(d), that section states in part that “[cjounts are grouped together if the offense level is determined largely on the basis of ... the quantity of the substance involved_” This subsection specifically includes drug offenses. See id. (mentioning drug offenses such as the instant one). Moreover, the fact that the government alleges only one count does not preclude a court from applying § lB1.3(a)(2) to a drug offense case. See Background § lB1.3(a)(2) (“the applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged.”); United States v. Alfonso Blanco, 888 F.2d 907 (1st Cir.1989) (Guideline § lB1.3(a)(2)’s cross reference to § 3D1.2(d)’s multiple counts requirement “is designed only to pick out a certain subset of crimes, namely the subset of ‘fungible item’ crimes, such as those involving drugs and money ... ”) (emphasis supplied). Thus, according to this court and at least six others, the scope of inquiry in drug cases such as the instant one is solely whether “quantities and types of drugs not specified in the act of conviction are ... part of the same course of conduct or common scheme or plan as the offense of conviction.” Background Guideline § 1B1.3(a)(2). See generally, United States v. White, 888 F.2d 490 (7th Cir.1989) (citing cases). But see United States v. Restrepo, 883 F.2d 781, 786 (9th Cir.1989) (quantities not specified in act of conviction may not be used in computing base offense level). Had DEA agents discovered three kilograms of cocaine in Gerante’s residence, the above analysis, as well as precedent from at least one other" } ]

[ { "docid": "18442453", "title": "", "text": "ensure that the Rule 23(a) requirements have been met. Falcon, 457 U.S. at 161, 102 S.Ct. at 2372-73. A. Impracticability of Joinder: Rule 23(a)(1). Rule 23(a)(1) requires that the class be so large that joinder is impracticable. “Practicability of joinder depends on many factors, including for example, the size of the class, ease of identifying its numbers and determining their addresses, facility of making service on them if joined and their geographic dispersion.” Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir.1986). The size of individual claims is another factor courts consider under Rule 23(a)(1). Where individual claims are so small as to inhibit an individual from pursuing his own claim, joinder is less likely. Luyando v. Bowen, 124 F.R.D. 52, 55 (S.D.N.Y.1989); Haywood, 109 F.R.D. at 577. When a class is extremely large, the numbers alone may presume impracticability of joinder. Finnan v. L.F. Rothschild & Co., Inc., 726 F.Supp. 460, 465 (S.D.N.Y.1989); Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D.Ill.1986). Rule 23(a)(1) incorporates no bright-line test for determining numerosity. This determination rests on the court’s practical judgment in light of the particular facts of the case. Deutschman v. Beneficial Corp., 132 F.R.D. 359, 371 (D.Del.1990) . The class representative is not required to establish the exact number in the proposed class. Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir.1983); Tolbert v. Western Elec. Co., 56 F.R.D. 108, 113 (N.D.Ga.1972). An unsubstantiated allegation as to numerosity, however, is insufficient to satisfy Rule 23(a)(1). Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981). In this case, Plaintiffs have estimated that the purported national class is comprised of five million members while Defendants have estimated that the class contains closer to ten million members. (TR, pp. 143-45.) The parties achieved those estimations by examining the number of the RALs generated in 1994 and then performing a loose extrapolation for the remainder of the years. (TR, p. 144.) The Court finds that the representations made by the parties are reasonable. As a result, this class size is sufficient to satisfy" } ]

[ { "docid": "9594598", "title": "", "text": "and adequately protect the interests of the class. Trevizo v. Adams, 455 F.3d 1155, 1161-62 (10th Cir.2006); Reed, supra, 849 F.2d at 1309; Fed.R.Civ.P. 23(a). 1. Numerosity Rule 23(a)(1) places the burden upon Plaintiff establish that the class he seeks to represent is so numerous as to make joinder impracticable. Trevizo, supra, 455 F.3d at 1162. Impracticability of joinder must be positively shown and cannot be speculative. Golden v. City of Columbus, 404 F.3d 950, 966 (6th Cir.2005). There is no set formula or magic number that conclusively decides this inquiry. Trevizo, 455 F.3d at 1162 (holding it was not error for the district court to deny class certification when the putative class consisted of eighty-four individual plaintiffs who could be located for joinder). The numerosity determination is a highly fact-specific case-by-ease inquiry. Id. A variety of factors, including the location of the putative class members and whether their names and addresses are easily ascertainable, may contribute to the analysis. 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1762 (2d ed. 1986) (“Wright & Miller”). Thus, when class members — like those in the instant matter — can be identified from readily available records and are located in a single geographic location, this cuts against impracticability. Id.; see also Rodriguez v. Bar-S Food Co., 567 F.Supp. 1241, 1247 (D.Colo.1983). However, if the number of plaintiffs is “sufficiently large that it would be impracticable and a heavy burden on th[e] court were certification refused,” the numerosity requirement may nonetheless be met. Rodriguez, 567 F.Supp. at 1247. To overcome the presupposition against numerosity in this ease, therefore, Plaintiff must show that the number of class members who can complain State Farm failed to provide them with the required coverage is sufficiently high as to make joinder impracticable. See Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 716 (5th Cir.1994). The determination of the number of potential plaintiffs in this case depends in large part on the applicable “class period”: the time period during which a pedestrian" }, { "docid": "11843622", "title": "", "text": "no substantive due process right that guarantees protection from the conduct Plaintiffs complain of, there is no alleged violation of § 1983, and that statute cannot support standing in this case. Accordingly, Plaintiffs’ Motion for Class Certification is DENIED to the extent the subclasses implicate alleged violations of substantive due process rights. B. Rule 23(a) Analysis One or more persons may sue as representatives of a class if the following four requirements are satisfied: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). The court must take the allegations in support of the certification as true and refrain from conducting a preliminary assessment of the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Each subclass must independently satisfy the Rule 23 requirements. Johnson v. American Credit Co., 581 F.2d 526, 532 (5th Cir.1978). 1. Numerosity The Court must examine the facts of each case to assess whether a putative class is sufficiently numerous. Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Generally, however, classes of more than forty members satisfy the numerosity requirement. Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986); Dujanovic v. MortgageAmerica, Inc., 185 F.R.D. 660, 666 (N.D.Ala.1999). When the exact number of class members cannot be ascertained, the court may make “common sense assumptions” to support a finding of numerosity. Evans v. U.S. Pipe & Foundry, 696 F.2d 925, 930 (11th Cir.1983). The primary focus of the numerosity requirement is whether joinder is impracticable. Thus, in cases involving mentally disabled plaintiffs, courts have found that the numerosity requirement is satisfied because joinder would be impracticable due to potential class members’ disabilities, even where the class size" }, { "docid": "4360219", "title": "", "text": "the class in individually controlling the prosecution or defense of the separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Fed.R.Civ.P. 23. The first requisite of subsection (a) is that “the class [be] so numerous that joinder of all members is impracticable.” The Eleventh Circuit Court of Appeals held that “while there is no fixed numerosity rule, ‘generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors/ ” Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.) (quoting 3B Moore’s Federal Practice ¶ 23.-05[1] at n. 7 (1978)), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986). At the hearing on this matter, Defendants stated that somewhere in the neighborhood of forty-five-to-fifty thousand people, in the five-state area of Alabama, Florida, Georgia, and North and South Carolina, had leased vehicles through Defendant using the challenged disclosure statement. Though only a percentage of those transactions involved the leasing of a vehicle for personal reasons, it is safe to say that there are a large number of potential class-members. Defendant has not strongly contested this requisite. The next requirement is that there be “questions of law or fact common to the class.” However, “Rule 23 does not require that all the questions of law and fact raised by the dispute be common. The claims actually litigated in the suit must simply be those fairly represented by the named plaintiffs.” Cox, 784 F.2d at 1557 (citing C. Wright & A. Miller, Federal Practice and Procedure, § 1763 (1982) at 603. See also Johnson v. American Credit Co. of Georgia, 581 F.2d 526, 532 (5th Cir.1978)). The proposed questions of law in this case are whether the terms of the lease agreement clearly and conspicuously disclose the amount or method of determining the amount of any" }, { "docid": "5064931", "title": "", "text": "made the necessary showing for class certification. Defendants oppose the motion for class certification on two grounds. First, they argue that it is not clear that the class meets the numerosity requirements. Second, they argue that it is conceivable that the members of the class might have inconsistent interests, raising questions of whether the named plaintiffs will fairly and adequately protect the interests of the class members. DISCUSSION 1. Numerosity Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). In the District of Columbia, numbers of class members from 200 to 400 have sustained the numerosity requirement. See Larionoff v. United States, 365 F.Supp. 140 (D.D.C.1973), aff'd, 533 F.2d 1167 (D.C.Cir.1976), aff'd 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977). Although plaintiffs must do more than allege numerosity, they need not show a precise number of class members. Not only is size a factor in determining whether joinder is impracticable, the geographical dispersion of class members has also been found to be a factor presenting an obstacle to joinder. See Kilgo v. Bowman Transportation, Inc., 789 F.2d 859, 878 (11th Cir.1986) (“Practicability of joinder depends on many factors, including for example, the size of the class, ease of identifying its members and determining their addresses, facility of making service on them if joined and their geographic dispersion.”); Calloway v. Westinghouse Electric Corp., 642 F.Supp. 663, 671 (M.D.Ga.1986). But see Batesville Casket Co. (EEO Litigation), 35 Empl. Prac.Dec. (CCH) ¶ 34,879 (D.D.C.1984) (stating that although geographic dispersion may be considered on the issue of practicability of joinder, the plain language of Rule 23 requires numerosity, not geographical dispersion). Another factor in determining whether joinder is impracticable is whether the members of the class would be able to pursue remedies on an individual basis. Plaintiffs argue that the joinder of their class members is impracticable ■ be cause of the size of the class, as well as the circumstances of the potential class members. The class includes at least 500 H-2 workers who are currently working or who have just finished" }, { "docid": "3451183", "title": "", "text": "not to determine the merits of a case at the certification stage, sometimes “it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Id. at 1570 n. 11 (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). A class action may only be certified if the court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23 have been met. Gilchrist v. Bolger, 733 F.2d 1551, 1555 (11th Cir.1984). For the reasons discussed below, the Court is satisfied that the requirements for a class action have been met. a. Numerosity The first requirement of Rule 23(a) is that the class must be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). The focus of the numerosity inquiry is not whether the number of proposed class members is “too few” to satisfy the Rule, but “whether joinder of proposed class members is impractical.” Armstead v. Pingree, 629 F.Supp. 273, 279 (M.D.Fla.1986). Parties seeking class certification do not need to know the “precise number of class members,” but they “must make reasonable estimates with support as to the size of the proposed class.” Fuller v. Becker & Poliakoff, P.A., 197 F.R.D. 697, 699 (M.D.Fla.2000). The Eleventh Circuit has held that “[generally, less than twenty-one is inadequate, more than forty adequate.” Cheney v. Cyberguard Corp., 213 F.R.D. 484, 490 (S.D.Fla.2003) (quoting Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986)). Thus, the “sheer number of potential class members may warrant a conclusion that Rule 23(a)(1) is satisfied.” LaBauve v. Olin Corp., 231 F.R.D. 632, 665 (S.D.Ala.2005) (citing Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th Cir.2004)). In support of numerosity, Plaintiff points out that in its Supplemental Response to Interrogatories, # 3, Defendant indicated that “the number of individuals in Florida who possibly received the Message between December 21, 2005 to August 24, 2007 is 30,139.” (D’s Supp. Resp, Pl.’s Appendix [DE-20-2] at p. 4). Defendant counters that this is" }, { "docid": "19332814", "title": "", "text": "court should consider include the geographic dispersion of the class members, judicial economy, and the ease of identifying the members of the class and their addresses. Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir.1986) (court looks to size of class, ease of identifying its members, facility of serving process on them, and their geographic dispersion); Kreuzfeld A.G. v. Carnehammar, 138 F.R.D. 594, 598-599 (S.D.Fla.1991). To satisfy numerosity, the plaintiffs must proffer some evidence of the number of members in the purported class, or at least a reasonable estimate of that number. In re Amerifirst Secs. Litig., 139 F.R.D. 423, 427 (S.D.Fla.1991). The court may “make common sense assumptions in order to find support for numerosity.” Evans v. United States Pipe & Foundry, 696 F.2d 925, 930 (11th Cir.1983). It is not necessary that the precise number of class members be known. Barlow v. Marion County Hosp. Dist., 88 F.R.D. 619, 625 (M.D.Fla.1980). The Eleventh Circuit has held that “while there is no fixed numerosity rule, ‘generally less than twenty-one is inadequate, more than forty adequate,’ with numbers between varying according to other factors.” Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986) (quoting 3B Moore’s Federal Practice section 23.05(1) n. 7 (1978)). In this case, the plaintiffs assert that the class could consist of thousands of members. The evidence on which they base this assertion includes deposition testimony of former and current Avis employees and Avis’s internal documents. For example, one former Avis employee, Bruce Ward, estimated at his deposition that he had turned down thousands of potential customers who had been identified as “Yeshiva.” Additionally, during discovery, Avis disclosed the names of forty persons who had been denied accounts in 1994, 1995, or 1996 because they were “Underage Yeshiva.” The plaintiffs argue that the existence of this 40-person list is in itself sufficient to satisfy the numerosity requirement. The court finds that allegations of the complaint present several factors which support the plaintiffs’ numerosity argument. First, the evidence indicates that the class could include a large number of persons. Second, the relevance" }, { "docid": "17156098", "title": "", "text": "performed in the past year, the past five years, or the putative class member’s total years of practice? Once a putative class member determines the number of failures he or she has experienced, would that putative class member then discount those failures which occurred due to improper implantation or misuse of the product by the patient? The plaintiffs proposed modification presents problems in identifying the class and would require individualized hearings. See Perez v. Metabolife Int’l., Inc., 218 F.R.D. 262, 266 (S.D.Fla.2003) (rejecting class definition which “require[d] individualized determinations as to who [were] class members.”). Without an adequately defined and clearly ascertainable class, the Court cannot grant class certification. Perez, 218 F.R.D. at 266-67. “An identifiable class is essential so that the Court can determine whether a particular claimant is a class member.” Perez, 218 F.R.D. at 266 (internal citation omitted). Nonetheless, because deficient class definitions can be modified, the undersigned will address the requirements of Rule 23(a) and 23(b)(3) to determine whether the plaintiff would otherwise be entitled to class certification. 2. Rule 23(a) Requirements A. Numerosity Under Rule 23(a)(1), the class must be so numerous that joinder is impracticable. In order for joinder to be impracticable, it need not be impossible but simply difficult or inconvenient. Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 70 (S.D.N.Y. 2000) (citing 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1762 (2d ed.1986)). Practicability of joinder depends on many factors: the size of the class, the ease of identifying its numbers and determining their addresses, facility of making service on them if joined, and their geographic dispersion. Hammett, 203 F.R.D. at 694; see also Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir.1986). The plaintiff argues that it has satisfied the numerosity requirement because “3i has sold more than 126,000 units to more than 2,000 customers” in all 50 states. See Plaintiffs Supplemental Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification (DE# 99 at 2, 3/12/08). Here, “[the defendant] does not contest numerosity on the ground" }, { "docid": "18336428", "title": "", "text": "V, VI, VII, VIII, IX, and X. (the “Global Class”). The Court finds that all of the requirements of Rule 23(a) and Rule 23(b)(3) are met with respect to the Global Class: Numerosity Rule 23(a)(1) requires that the class be so numerous that joinder of all members is impracticable. The question of whether Rule 23(a)(1) has been satisfied depends on the facts of each case. Impracticability, also referred to as numerosity, does not mean “impossibility.” See 7A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure: Civil § 1762 at p. 159 (1986). Several factors must be considered by a District Court when determining whether joinder of all of the members is impracticable. The most obvious and most important factor of all is the size of the class. Although a plaintiff need not show the precise number and identity of class members, mere speculation as to the number of parties involved and general allegations of numerosity are insufficient to satisfy Rule 23(a)(1). See Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925 (11th Cir.1983). In order to satisfy this prerequisite, a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members. See Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d at 1038; See also Kreuzfeld A.G. v. Camehammar, 138 F.R.D. 594, 599 (S.D.Fla.1991) (there exists no definite standard as to the size a given class must attain in order to satisfy Rule 23(a)(1)). The number of class members alone, however, is not the determinative factor under Rule 23(a)(1). Since the proper focus under Rule 23(a)(1) is on whether joinder of all members is practicable in view of the numerosity of the class, courts must take other factors into consideration, such as the geographic diversity of the class members, the nature of the action, the size of each plaintiff’s claim, judicial economy and the inconvenience of trying individual lawsuits, and the ability of the individual class members to institute individual lawsuits. See Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d at 1038; See also Kreuzfeld" }, { "docid": "4746962", "title": "", "text": "conduct or refusal to act must be generally applicable to the class, and 2) final injunctive or corresponding declarative relief is requested for the class. See Retired Chicago Police Ass’n v. City of Chicago, 141 F.R.D. 477, 483 (N.D.Ill.1992); Fed.R.Civ.P. 23(b)(2); 7A Wright, Miller & Kane; Fed. Prac. & Proa, § 1775 at 447-48 (1986). Numerosity To satisfy the numerosity requirement, the joinder of all class members need not be impossible, but rather joinder must be extremely difficult or inconvenient. Gomez v. Illinois State Bd. of Educ., 117 F.R.D. 394, 398-99 (N.D.Ill.1987). The complaint need not allege exact number or identity of class members; the finding of numerosity may be supported by common sense assumptions. Retired Chicago Police Ass’n, 141 F.R.D. at 484-485 (citations omitted). Additionally, in determining numerosity, the Court considers judicial economy and the ability of class members to institute individual suits. Id. at 485. The Plaintiffs estimate that there are approximately 100-200 class members. Moreover, the Defendants do not dispute that the class is sufficiently large to satisfy the numerosity requirement of Rule 23(a)(1), nor is it disputed that joinder of all class members would be impractical, if not impossible. Therefore, the numerosity requirement of Rule 23(a)(1) is satisfied. See Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986) (while there is no fixed numerosity rule, “generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors”). Commonality The second requirement for class certification is that there be “questions of law or fact common to the class.” Rule 23(a)(2). However, not all factual or legal questions raised in a lawsuit need be common as long as a single issue is common to all class members, Retired Chicago Police Ass’n, 141 F.R.D. at 485. Class actions, therefore, cannot. be defeated on commonality grounds solely because there are some factual variations among the claims of individual members. Id. (citing Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th Cir.1980), cert. denied, 451 U.S. 914, 101" }, { "docid": "19317443", "title": "", "text": "See Gutierrez, 2011 WL 579238, at *5; Page, 2012 WL 6913593, at *6; Agne, 286 F.R.D. at 565; Kane, 2011 WL 6018403, at *8; see also Buslepp v. Improv Miami, Inc., 2012 WL 1560408, at *2 (S.D.Fla. May 4, 2012) (Cohn, J.). II. Class Certification “Prior to certifying a class action, district courts must conduct a ‘rigorous analysis’ of whether a putative class meets the requirements of Rule 23 of the Federal Rules of Civil Procedure.” City of St. Petersburg v. Total Containment, 265 F.R.D. 630, 634 (S.D.Fla.2010) (Lenard, J.). Accordingly, the Court carefully considers below the arguments for and against class certification. A. Rule 23(a) Requirements In order to obtain class certification, Manno must first establish that the four prerequisites under Rule 23(a) — numerosity, commonality, typicality, and adequacy — are satisfied. 1. Numerosity To establish numerosity, Manno must show that “the class is so numerous that joinder of all members is impracticable.” See Vega, 564 F.3d at 1266-67 (quoting Fed. R.Civ.P. 23(a)(1)). While “mere allegations of numerosity are insufficient,” Rule 23(a)(1) imposes a “generally low hurdle,” and “a plaintiff need not show the precise number of members in the class.” See Vega, 564 F.3d at 1267 (citations omitted). “Nevertheless, a plaintiff still bears the burden of making some showing, affording the district court the means to make a supported factual finding, that the class actually certified meets the numerosity requirement.” See id. (emphasis original). Although mere numbers are not dispositive, the general rule of thumb in the Eleventh Circuit is that “less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.” See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986); Kuehn v. Cadle Co., 245 F.R.D. 545, 548 (M.D.Fla.2007). The Court may also consider factors such as “the geographic diversity of the class members, the nature of the action, the size of each plaintiffs claim, judicial economy and the inconvenience of trying individual lawsuits, and the ability of the individual class members to institute individual lawsuits.” See Agan v. Katzman & Korr, P.A., 222 F.R.D. 692," }, { "docid": "15583320", "title": "", "text": "Corp., 180 F.R.D. 347 (N.D.Ill.1998). Federal Rule of Civil Procedure 23 establishes a two-step procedure for determining whether a class can be certified. See Hurd v. Monsanto Co., 164 F.R.D. 234, 238 (S.D.Ind.1995); 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1753, at 44 (1986). The first step is to satisfy the prerequisites of Rule 23(a), which provides that: One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). The party seeking class certification bears the burden of proving that these prerequisites have been met and that class certification is appropriate. See General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993); Hurd, 164 F.R.D. at 238. Because each element is a prerequisite to certification, failure to meet any one of them precludes certification as a class. See Retired Chicago Police Ass’n, 7 F.3d at 596. a. Numerosity As discussed above, Plaintiffs must show that the putative class is so numerous that “joinder of all [class] members is impracticable.” Fed. R.Civ.P. 23(a)(1) (emphasis added). While there is no magic number held to satisfy this requirement, classes of forty or more members have generally been found to be sufficiently numerous. See Swanson v. American Consumer Indus., 415 F.2d 1326, 1333 n. 9 (7th Cir.1969); Charles Alan Wright, Arthur R. Miller & Mary Kay Kane § 1762, at 159. By GM’s own account, there are 258 current GM dealers in the state of Indiana. General Motors argues that joinder is not impracticable because all" }, { "docid": "18336430", "title": "", "text": "A.G. v. Carnehammar, 138 F.R.D. at 599. Therefore, all of these factors must be considered by the Court in determining whether impracticability exists. Plaintiffs allege in their Fourth Amended and Consolidated Class Action Complaint that more than 1,500 class members invested approximately $550 million in the Premium fraud. (See Plaintiffs’ Complaint, ¶ 171). As stated above, however, the size of the class should not be utilized as the determinative factor in deciding whether Rule 23(a)(1) has been met. In addition to the large number of members here, the class is also geographically dispersed across the United States and Canada. For example, the named Plaintiffs are citizens of Florida (Walco, Warren, Hughes and the Shack Plaintiffs), Delaware (PHK and Burleigh), Pennsylvania (Mr. and Mrs. Woidislawsky), and Canada (Sklar). (See Plaintiffs’ Complaint, Vs 6-13). The size and geographical diversity of the class renders joinder of all members impracticable. See Allen v. Isaac, 99 F.R.D. 45 (N.D.Ill.1983) (although the class of 17 black employees was not large, geographic dispersion across the United States rendered their joinder impracticable); See also Gentry v. C & D Oil Co., 102 F.R.D. 490 (W.D.Ark.1984) (joinder was impracticable where potential class members were located throughout a number of counties in both Arkansas and Missouri). In addition to the inexpediency of their joinder, it would be extremely inconvenient and a waste of valuable judicial resources to try several hundred individual lawsuits. For these reasons, the Court finds that the numerosity requirement of Rule 23(a)(1) has been met. Commonality The second prerequisite of Rule 23(a) requires that there be questions of law or fact common to the class. This prerequisite does not require that all of the questions of law or fact raised by the case be common to all the plaintiffs. See Cox v. American Cast Iron Pipe Co., 784 F.2d at 1557; See also Haitian Refugee Center, Inc. v. Nelson, 694 F.Supp. 864, 877 (S.D.Fla.1988), affirmed, 872 F.2d 1555 (11th Cir.1989). Furthermore, Rule 23(a)(2) does not establish any quantitative or qualitative test of commonality. See 7A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice" }, { "docid": "10100788", "title": "", "text": "class action would not be superior to other methods of adjudication. See Fed. R.Civ.Pro. 23. The Requirements of Rule 23(a). The court will simply assume, without deciding, that the requirements of Rule 23(a) have been met. Under Rule 23(a), a class action must satisfy four requirements to be satisfied: (1) numerosity — the number of injured persons must be large enough to justify treatment as a class, i.e. “joinder of all members -[must be] impracticable;” (2) commonality — there must be “questions of law or fact common” to all the members of the class; (3) typicality — the “claims and defenses” of the named plaintiffs must be “typical of the claims or defenses of the class;” and (4) adequacy of representation — the named plaintiffs, and consequently their counsel, must be capable of “fairly and adequately” prosecuting the action. Fed.R.Civ.Pro. 23(a). In this case, named Plaintiffs clearly have shown that a large enough class of persons harmed by the Defendant’s actions exists to satisfy class treatment. Approximately 50% of Flagstar’s loans contained a yield spread premium — that leads to an estimate of 35,000 class members. Given this figure, “numerosity” is satisfied with little difficulty. Even if only a small number of those fit the class definition, a sufficient number would be present. See Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986), cert. den. 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986) (“while there is no fixed numerosity rule, ‘generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.’”). The court may easily assume, therefore, that numerosity is satisfied. The court may also assume that commonality; typicality, and adequacy of representation, are all satisfied. As noted in opinions of the Eleventh Circuit and Supreme Court, these three requirements tend to merge, the real question being whether the named Plaintiffs have claims similar to the rest of the class, and can forcefully represent those interests. See Andrews v. American Tel. & Tel. Co., 95 F.3d 1014, 1022-23 (11th Cir. 1996) (discussing three aspects together); see also" }, { "docid": "7298274", "title": "", "text": "impracticable. Vargas v. Calabrese, 634 F.Supp. 910, 918 (D.N.J.1986). Precise enumeration of the members of a class is not necessary for the action to proceed as a class action. Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d section 1762 (1982). It is permissible to estimate class size. In re ORFA Securities Litigation, 654 F.Supp. 1449 (D.N.J.1987). Joinder of all members of the class need not be impos sible to satisfy Rule 23: “Impracticability does not mean impossibility but only the difficulty or inconvenience of joining all members of the class.” Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir.1964); Wright, Miller & Kane Federal Practice and Procedure, Civil 2d section 1762 (1986). Plaintiff has clearly established that the proposed class is so numerous that joinder would be impracticable. There are potentially hundreds of class members geographically dispersed throughout the United States because WBI’s common stock was actively traded on an over-the-counter basis nationally. As of November 1987, there were approximately 1,155 shareholders of record of WBI common stock. WBI had more than 2,300,000 shares of common stock outstanding, with more than 500,000 shares having been purchased during the “class period”. Defendants aver that because there were only approximately ninety persons, most being New Jersey based investors, who purchased Washington Bancorp., Inc. stock during the proposed class period, the numerosity requirement has not been met. It appears likely, however, that may of these “purchasers” were brokerage houses who held the securities in “street form” for numerous customers. Moreover, even if these were individual purchasers, the numerosity requirement has been met. See Epstein v. Moore, [1988-1989 Transfer Binder] Fed.Sec.L.Rep. (CCH) para. 93,957, 90,442, 1988 WL 62213 (D.N.J.1988) (a proposed class of between 56 to 85 individuals satisfied the numerosity requirement); see also 3 B.J. Moore, Moore’s Federal Practice, para. 23.05[1] (2d. Ed.1982) (numbers in excess of forty have sustained the numerosity requirement). It is clear to the Court that plaintiff has satisfied the numerosity requirement of Rule 23(a)(1). Commonality In determining whether common questions exist, Rule 23(a)(2) requires only that questions of law or fact be" }, { "docid": "19332815", "title": "", "text": "than forty adequate,’ with numbers between varying according to other factors.” Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986) (quoting 3B Moore’s Federal Practice section 23.05(1) n. 7 (1978)). In this case, the plaintiffs assert that the class could consist of thousands of members. The evidence on which they base this assertion includes deposition testimony of former and current Avis employees and Avis’s internal documents. For example, one former Avis employee, Bruce Ward, estimated at his deposition that he had turned down thousands of potential customers who had been identified as “Yeshiva.” Additionally, during discovery, Avis disclosed the names of forty persons who had been denied accounts in 1994, 1995, or 1996 because they were “Underage Yeshiva.” The plaintiffs argue that the existence of this 40-person list is in itself sufficient to satisfy the numerosity requirement. The court finds that allegations of the complaint present several factors which support the plaintiffs’ numerosity argument. First, the evidence indicates that the class could include a large number of persons. Second, the relevance of the numerosity requirement may be less significant in cases alleging class-wide discrimination. Evans, 696 F.2d at 930. Third, potential class members are geographically dispersed across the United States. Wide geographic dispersion of the potential class members supports a finding that joinder would be impracticable. See Kernan v. Holiday Universal, Inc., 1990 WL 289505 (D.Md.1990) (numerosity requirement met where defendant’s companywide policy of discrimination existed throughout its nationwide chain of spas); Allen v. Isaac, 99 F.R.D. 45 (N.D.Ill.1983) (although class of seventeen black employees was not large, geographical dispersion across United States rendered their joinder impracticable). Fourth, the plaintiffs’ claims for damages involve only a small amount of money, making it unlikely that they would file separate actions. See Auto Ventures, Inc. v. Moran, 1997 WL 306895 (S.D.Fla.1997) (Rule 23 appropriate for redressing rights in cases where claim is otherwise too small to warrant individual litigation). Finally, where the question on numerosity is a close one, a balance should be struck in favor of a finding of numerosity because the court always has the option" }, { "docid": "6333353", "title": "", "text": "Rule 23(b). A. Rule 23(a) Requirements 1. Numerosity To satisfy the numerosity requirement of Rule 23(a), plaintiffs must show that the number of individuals composing the potential class be so numerous that joinder of all members is impracticable. See Fed. R.Civ.P. 23(a). No arbitrary or rigid rules regarding the required size of a class have been established by the courts, and what constitutes impracticability depends upon the facts of each case. See Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 54 (8th Cir.1977). Practicality of joinder depends on such factors as the size of the class, the ease of identifying its members and determining their addresses, the facility of making service on them if joined, their geographic dispersion and whether the size of the individual claims is so small as to inhibit individuals from separately pursuing their own claims. See Paxton v. Union Nat’l Bank, 688 F.2d 552, 559-60 (8th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983) (citing C. Wright & A. Miller, Federal Practice and Procedure § 1762). In their amended complaint, plaintiffs asserted a class size of more than 50 individuals. (Amended complaint, ¶ 6(a)(1)). By the time this motion was briefed, the estimate had grown to anywhere from 100 people to “several multiples of that” to as high as 2000 or more black “exclusionees.” (Pltf.Brief, pp. 9, 11). Plaintiffs rely on the testimony of former bouncer Brian Roback, who believes he personally denied entrance to more than 50 African American men and observed that approximately 20-25 African American men were denied entrance by all bouncers every Friday and Saturday night. (Roback Aff. ¶¶ 2-6). However, the chang ing estimates of class size suggest that plaintiffs have engaged in considerable speculation, which is insufficient to satisfy the numerosity requirement for class certification. See Schermer Trust v. Sun Equities Corp., 116 F.R.D. 332, 336 (D.Minn.1987). Further, the court notes that the televised report on the nightclub’s alleged discriminatory practices was aired at the end of the popular February “sweeps” rating period, yet since that broadcast, a total of only sixteen potential class" }, { "docid": "11843623", "title": "", "text": "732 (1974). Each subclass must independently satisfy the Rule 23 requirements. Johnson v. American Credit Co., 581 F.2d 526, 532 (5th Cir.1978). 1. Numerosity The Court must examine the facts of each case to assess whether a putative class is sufficiently numerous. Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Generally, however, classes of more than forty members satisfy the numerosity requirement. Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986); Dujanovic v. MortgageAmerica, Inc., 185 F.R.D. 660, 666 (N.D.Ala.1999). When the exact number of class members cannot be ascertained, the court may make “common sense assumptions” to support a finding of numerosity. Evans v. U.S. Pipe & Foundry, 696 F.2d 925, 930 (11th Cir.1983). The primary focus of the numerosity requirement is whether joinder is impracticable. Thus, in cases involving mentally disabled plaintiffs, courts have found that the numerosity requirement is satisfied because joinder would be impracticable due to potential class members’ disabilities, even where the class size is relatively small. Armstead v. Pingree, 629 F.Supp. 273, 279 (M.D.Fla. 1986); see D.W. v. Poundstone, 165 F.R.D. 661, 670 (M.D.Ala.1996); Bradley v. Harrel-son, 151 F.R.D. 422, 426 (M.D.Ala.1993). a. Subclass One: Persons Who Have Not Received Waiver Services with Reasonable Promptness Plaintiffs argue that the numerosity requirement is easily satisfied because there were over 1,600 people on the waiting list as of August 2007. (Doc. # 128-3, PX 1, at 3.) Defendants argue that the number of people on the waiting list does not establish numerosity because the list consists of persons who have different levels of need. (Doe. # 129 39.) The Parties’ arguments are both slightly off the mark. As discussed above, members of Subclass One are those who (1) meet the requirements for participation in the HCB Waiver programs, and (2) are entitled to one of the lawfully limited number of waiver slots. In other words, if a slot is not available, a person is not eligible, and is therefore not a class member, even if a person otherwise meets the" }, { "docid": "18336427", "title": "", "text": "94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974); See also Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir.1986), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986). The United States Supreme Court noted in Eisen that, “ ‘in determining the propriety of a class action, the question is not whether the ... plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.’ ” Eisen v. Carlisle & Jacquelin, 417 U.S. at 178, 94 S.Ct. at 2153 (quoting with approval Miller v. Mackey International, Inc., 452 F.2d 424, 429 (5th Cir.1971)). LEGAL ANALYSIS As stated above, Plaintiffs are seeking to certify a Global Class as well several sub classes. The requirements of Rule 28 as they apply to the Global Class and the subclasses will be analyzed separately. I. GLOBAL CLASS. Plaintiffs seek to certify a class consisting of all persons who purchased interests in or through the Funding Entities to prosecute Counts III, IV, V, VI, VII, VIII, IX, and X. (the “Global Class”). The Court finds that all of the requirements of Rule 23(a) and Rule 23(b)(3) are met with respect to the Global Class: Numerosity Rule 23(a)(1) requires that the class be so numerous that joinder of all members is impracticable. The question of whether Rule 23(a)(1) has been satisfied depends on the facts of each case. Impracticability, also referred to as numerosity, does not mean “impossibility.” See 7A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure: Civil § 1762 at p. 159 (1986). Several factors must be considered by a District Court when determining whether joinder of all of the members is impracticable. The most obvious and most important factor of all is the size of the class. Although a plaintiff need not show the precise number and identity of class members, mere speculation as to the number of parties involved and general allegations of numerosity are insufficient to satisfy Rule 23(a)(1). See Evans v. U.S. Pipe & Foundry Co.," }, { "docid": "17156099", "title": "", "text": "Requirements A. Numerosity Under Rule 23(a)(1), the class must be so numerous that joinder is impracticable. In order for joinder to be impracticable, it need not be impossible but simply difficult or inconvenient. Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 70 (S.D.N.Y. 2000) (citing 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1762 (2d ed.1986)). Practicability of joinder depends on many factors: the size of the class, the ease of identifying its numbers and determining their addresses, facility of making service on them if joined, and their geographic dispersion. Hammett, 203 F.R.D. at 694; see also Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir.1986). The plaintiff argues that it has satisfied the numerosity requirement because “3i has sold more than 126,000 units to more than 2,000 customers” in all 50 states. See Plaintiffs Supplemental Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification (DE# 99 at 2, 3/12/08). Here, “[the defendant] does not contest numerosity on the ground that the proposed class is too small; it ... argues ... that the proposed class is not adequately defined or clearly ascertainable given Plaintiffs inconsistent and defective class definitions.” See Defendant Biomet 3i, Inc.’s Response to Plaintiffs’ Supplemental Memorandum of Law in Support of its Motion for Class Certification (DE# 102 at 1-2, 3/19/08). The undersigned addressed the defendant’s class definition concerns above. Assuming, arguendo, that the proposed class definitions are adequate, the plaintiff easily satisfies the numerosity requirement. The large number of Implant Products sold by the defendant and the geographic dispersion of the putative class members make joinder impracticable in the instant case. B. Commonality Commonality refers to the group characteristics of the class as a whole, while typicality refers to the individual characteristics of the representative plaintiff in relation to the class. Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir.2000). The commonality requirement demands that a class action involve issues susceptible to class-wide proof. Cooper v. Southern Co., 390 F.3d 695, 714 (11th Cir.2004). The plaintiff argues that it “meets the" }, { "docid": "17158385", "title": "", "text": "either organ transplant recipients or their family members. The principle allegation is that many of these survivors are Medicaid recipients who have and will continue to have ongoing prescription drug needs. The Coalition’s purpose is to monitor legislative, policy, and practice developments impacting the health needs of the transplant survivors; to advocate for legislation, policy, and practice that meets those needs; and to inform the transplant survivors and their families about that advocacy and involve them in it. At this juncture, the Coalition has failed to establish a sufficient record to meet associational and representational standing requirements under the applicable case law. Accordingly, the Court concludes that the it lacks standing to seek class certification and be included as a named Plaintiff. C. ANALYSIS OF CLASS REQUIREMENTS 1. Numerosity Rule 23(a)(1) requires that a Class shall not be so large that joinder would be impracticable. In order to establish numerosity for class certification, Plaintiffs need not present an exact number for the class. There is no fixed rule. Rather, what constitutes numerosity depends on the specific facts of each case. CV Reit, Inc. v. Levy, 144 F.R.D. 690, 696 (S.D.Fla.1992). The Court may consider geographic dispersion of class members and judicial economy in its determination. See Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir.1986). While there is no definite standard as to the size of a given class, a plaintiffs estimate should be reasonable. Id. Generally, “ ‘less than twenty-one is inadequate, more than forty adequate.’ ” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986) (quoting 3B Moore’s Federal Practice § 23.05(1) n. 7. (1978)). Although the Defendant has admitted numerosity (Def. Ans. H 15), this Court independently concurs that this requirement has been met. Documents provided by the Defendant establish that plaintiff class numbers are in the thousands. Defendant’s own statistics demonstrate that over 35,000 recipients in a single recent month were denied coverage of their prescription drugs or the opportunity for a hearing, including 21,974 recipients who received no drug at all in the same therapeutic class. These numbers exclude" } ]

[ { "docid": "4679733", "title": "", "text": "used it to pay household expenses, among them the monthly house payment; (10) At an undisclosed time during 1980, appellees initiated suit against appellant in the Superior Court of Oconee County for breach of the agreements executed on August 1, 1978; (11) This matter, originally set for trial in August of 1980, was rescheduled for sometime in January of 1981; (12) On December 8, 1980, appellant transferred to his wife the remaining one-half undivided interest that he had in the family residence, thus making her the sole owner of the residence; (13) At the time of transfer, appellant estimated the residence to have a fair market value of $62,000, while existing mortgages and tax liens against the property totalled over $70,000; (14) Appellant admitted that his actions in transferring the residence were motivated by a desire to keep it throughout the bankruptcy proceeding; and (15) On January 16, 1981, appellant filed his petition in the United States Bankruptcy Court seeking relief under Chapter 7 of the Bankruptcy Code — the trial in the Superior Court of Oconee County was thereby stayed under the operation of 11 U.S.C. § 362. Based on the above findings of fact, the bankruptcy court found as a matter of law that appellant was not entitled to discharge of his debts because he had violated section 727(a)(2)(A) of the Bankruptcy Code. Section 727(a)(2)(A) provides that: “The court shall grant the debtor a discharge unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; ...” The intent to hinder must be an actual intent. In re Harpe, 354 F.Supp. 59 (M.D.Ga.1973). That actual intent may be inferred from the actions of the debtor. 1A Collier on Bankruptcy, ¶ 14.47 (14th Ed. 1972). Appellant in the instant case complains that the evidence as to his intent" } ]

[ { "docid": "3447733", "title": "", "text": "'alleged that the Defendants \"incurred services” from the Plaintiff in .a fraudulent manner with the intention of never paying for the services. (Am. Compl. ¶ 23). This allegation, if proven, could give rise to a determination that the Debtors' debt to the Plaintiff is nondischargeable under 11 U.S.C. § 523(a)(2). See, e.g., In re Ricker, 475 B.R. 445, 457 (Bankr.E.D.Pa.2012) (citing cases). However, it does not state a claim for the denial of the Debtors' entire discharge under 11 U.S.C. 727(a). . Fed. R. Bankr.P. 7056, applicable in this adversary proceeding, incorporates Fed. R. Civ. . See id. at 1531 (3d Cir.1993); In re DiLoreto, 266 Fed.Appx. 140, 144 (3d Cir.2008) (nonprecedential); In re Coley, 433 B.R. 476, 487 (Bankr.E.D.Pa.2010); In re Rose, 397 B.R. 740, 742 (Bankr.M.D.Pa.2008); In re Spitko, 357 B.R. 272, 301 (Bankr.E.D.Pa.2006). . See In re Crater, 286 B.R. 756, 760-61 (Bankr.D.Ariz.2002); In re Okan's Foods, 217 B.R. 739, 755 (Bankr.E.D.Pa.1998); see also Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007) (\"Issues such as intent and credibility are rarely suitable for summary judgment”); Coley, 433 B.R. at 493 (\"proof of fraudulent intent is not especially susceptible to disposition by summary judgment”). . See, e.g., In re Jones, 445 B.R. 677, 723 (Bankr.N.D.Tex.2011); see also In re Gronlund, 2014 WL 4090433, at *5 (9th Cir. BAP Aug. 19, 2014); In re Svetc, 521 B.R. 892, 909-10 (Bankr.W.D.Ark.2014). In re Estes, 2014 WL 897325, at *23 (Bankr.N.D.Ala.Mar. 6, 2014). . See In re Corona, 2010 WL 1382122, at *14 (Bankr.D.N.J. Apr. 5, 2010); In re Blanchard, 201 B.R. 108, 121 (Bankr.E.D.Pa.1996). . The elements of a claim for denial of discharge under § 727(a)(4) based on false oath are: 1. the debtor made a false statement under oath; 2. the debtor knew the statement was false; 3. the debtor made the statement with the intent to deceive; and 4. the statement was material to the bankruptcy case. E.g., In re Singh, 433 B.R. 139, 154 (Bankr.E.D.Pa.2010) (citing cases). . Indeed, the failure to disclose assets frequently is raised as a ground for denial of discharge as a" }, { "docid": "4578680", "title": "", "text": "prevent the suspension of his license by FINRA. (Joint Pre-trial Statement at 3). In March 2010, shortly after the bankruptcy filing, Gunn Allen ceased operations. (N.T. 11:57:00-11:57:32). The Debtor found a new position with another independent firm, Aegis Capital Group (“Aegis”) that same month. (N.T. 12:46:20). The Debtor remained employed at Aegis at the time of trial. (N.T. 11:57:40-11:57:44). III. NON-DISCHARGEABILITY UNDER 11 U.S.C. § 523(a)(2)(A) One of the chief purposes of the Bankruptcy Code is to provide honest debtors with a “fresh start,” free from the “weight of oppressive indebtedness.” In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); In re Feld, 203 B.R. 360, 365 (Bankr.E.D.Pa.1996). To this end, exceptions to discharge are interpreted narrowly against creditors and liberally in favor of debtors. Cohn, 54 F.3d at 1113; In re Giquinto, 388 B.R. 152, 164 (Bankr.E.D.Pa.2008); Feld, 203 B.R. at 365. The burden of proof in a non-dischargeability proceeding is on the person seeking to deny a discharge and must be established by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Oppenheimer bases its non-discharge-ability claim on 11 U.S.C. § 523(a)(2)(A), which states: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt — • (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; ... Section 523(a)(2)(A) provides three (3) grounds for nondischargeability: “false pretenses,” “false representations,” and “actual fraud.” Courts have noted a distinction among these grounds. See, e.g., In re August, 448 B.R. 331, 349-50 (Bankr.E.D.Pa.2011); Giquinto, 388 B.R. at 165 n. 26 (citations omitted); see also 4 Collier on Bankruptcy ¶ 523.08[1][d], [e] (Alan N. Resnick, Henry J. Sommer eds., 16th ed. 2009). Courts have regarded “false representations” as involving affirmative statements that are false or misleading. See Giquinto, 388 B.R. at 165 n. 26. “False pretenses,” on the other hand," }, { "docid": "10706735", "title": "", "text": "in the Bankruptcy Court’s determination that collateral estoppel applied to certain factual findings contained in the State Court Action and the Chapter 11 Proceeding. D. The Bankruptcy Court’s Determination that Harley Kane’s Discharge was Barred Pursuant to 11 U.S.C. § 727(a)(7) Count III of the adversary complaint sought a denial of discharge under Sections 727(a)(7) and 727(a)(2) by claiming that Harley Kane caused the Partnership to pay his personal, non-dis-chargeable debts with the intent to delay and hinder Appellees’ ability to collect funds under the State Court Judgment. Section 727(a)(7) provides that a bankruptcy court “shall grant the debtor a discharge, unless ... the debtor has committed any act specified in paragraph (2), (3), (4), (5), or (6) of this subsection, on or within one year before the date of the filing of the petition, or during the case, in connection with another case, under this title or under the Bankruptcy Act, con-ceming an insider....” 11 U.S.C. § 727(a)(7) (emphasis added). “To deny a debtor’s discharge under § 727(a)(2), the plaintiffs must show that the debtor transferred, removed, destroyed, mutilated, or concealed property with the intent to hinder, delay, or defraud his creditors.” In re Tipler, 360 B.R. 333, 340 (Bankr.N.D.Fla.2005) (citations omitted). “The plaintiffs bear the burden of demonstrating actual fraudulent intent.” Id. (citing In re Miller, 39 F.3d 301, 306 (11th Cir.1994)). “However, because a debtor is unlikely to admit his fraudulent intent, a finding of actual intent may be based on circumstantial evidence or inferred from the surrounding facts and circumstances.” Id. (citations omitted). To prevail on a claim under Section 727(a)(2) regarding a previous bankruptcy proceeding involving an insider, a creditor must “establish by a preponderance that (1) there was destruction or concealment, (2) within one year of the filing of the debtor’s case, (3) of the property of the estate of an insider, (4) by the debtor, (5) with the intent to hinder, delay, or defraud creditors.” In re Phillips, 418 B.R. 445, 465 (Bankr.M.D.Fla.2009) (citing In re Unger, 333 B.R. 461, 470 (Bankr.M.D.Fla.2005)); see also In re Weisenfeld, No. 09-AP-2526AJC, 2011 WL 1048563, at" }, { "docid": "10188280", "title": "", "text": "is enough to deny discharge under 11 U.S.C. § 727(a)(2)(A). In re Adeeb, 787 F.2d 1339, 1343 (9th Cir.1986). 5. Whether the transfer injured a creditor is irrelevant. Id.; In re Smiley, 864 F.2d 562, 569 (7th Cir.1989). Burden of Proof 6. In 1991, the United States Supreme Court held that the appropriate standard of proof in 11 U.S.C. § 523 matters is the preponderance of the evidence standard. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). 7. The rationale employed by the Supreme Court in Grogan applies as well in 11 U.S.C. § 727 proceedings. First Nat’l. Bank v. Serafini, 938 F.2d 1156, 1157 (10th Cir.1991); In re Cook, 126 B.R. 261, 265 (Bankr.E.D.Tex.1991). 8. The Tenth Circuit stated “... we perceive no good reason to apply a different standard where § 727(a)(2) is involved. It would be incongruous to apply a ‘preponderance of the evidence’ standard to § 523(a) and a ‘clear and convincing’ standard to § 727(a)(2). Such would be clearly at odds with the rationale in Grogan.” Serafini, 938 F.2d at 1157. 9. Under 11 U.S.C. § 727, Cullen must prove the existence of each of the following elements: i) That the transfer of property occurred; ii) That the property transferred was owned by the debtor; iii) That the transfer occurred within one year before the date the bankruptcy petition was filed; and iv) That the defendant had, at the time of the transfer, the intent to defraud a creditor. Cook, 126 B.R. at 266; In re Ford, 53 B.R. 444, 446 (W.D.Va.1984) (quoting In re Reed, 18 B.R. 462, 463 (Bankr.E.D.Tenn.1982)); 4 Collier on Bankruptcy ¶ 727.02 at 727-11 (15th Edition 1990). Concealment 10. Cullen concedes that the alleged transfer or gift of the boat from the debtor to Carolyn occurred in June of 1983. Debtor filed bankruptcy on September 13, 1991. However, in this circuit, “transfer of title to property while retaining benefits of ownership constitutes concealment within the purview of Section 727(a)(2).” In re Sanders, 128 B.R. 963, 969 (Bankr.W.D.La.1991) (citing In re Olivier, 819 F.2d 550, 555" }, { "docid": "8943608", "title": "", "text": "even if true, considering the factual sequence in this case should not be allowed. Timeliness should be determined from all the circumstances. Candelario-Del Moral v. UBS Fin. Servs. (In re Efron), 746 F.3d 30, 35 (1st Cir.2014). BSPR’s filing of amended proof of claim number 4-2 was untimely under the circumstances. Thus, the court holds that the pre-petition mortgage arrearages, fees and charges were paid in full. Therefore, there are no pre-petition arrears owed. Fed. R. Bankr.P. 3002.1 Fed. R. Bankr.P. 3001(c)(2), as part of the 2011 amendments to Fed. R. Bankr.P. 3001, requires that a creditor that is secured by a mortgage on the debtor’s principal residence must file Attachment A in addition to Official Form 10. See Fed. R. Bankr.P. 3001(c)(2). The 2011 amend ments to the Federal Rules of Bankruptcy Procedure became effective on December 1, 2011. Fed. R. Bankr.P. 3002.1 was adopted in December 2011 to “address the problem faced by many Chapter 13 debtors who would ‘emerge from bankruptcy only to face a substantial and previously undisclosed arrearage’ resulting from late fees or other charges arising from their residential mortgage.” In re Baca, 2012 WL 6647733, *4-5, 2012 Bankr.Lexis 5874, *13-14 (Bankr.D.N.M.2012). Rule 3002.1 deals with this particular issue by requiring notice or payment changes and thus providing an opportunity for the debtor to contest the same during the Chapter 13 case. Fed. R. Bankr.P. 3002.1 applies only in Chapter 13 cases and to claims secured by a debtor’s principal residence that are provided for under the debtor’s plan in conformity with 11 U.S.C. § 1322(b)(5). See Alan N. Resnick & Henry J. Sommer, 9 Collier on Bankruptcy ¶ 3002.1.01 (16th ed. 2013). These are claims that: (i) are secured by the debtor’s principal residence; (ii) may or may not have a pre or post-petition arrearage component that will be paid during the case either directly through the plan or directly by the creditor; and (iii) other than the arrearage component of the claim, the mortgage claim will not be paid in full during the life of the plan. Id. “The Rule is designed to" }, { "docid": "9789053", "title": "", "text": "objecting to a debtor’s discharge under § 727(a)(2) has the burden of proving four elements by a preponderance of the evidence— (1) that the act complained of was done within one year prior to the date the petition was filed, or after the date the petition was filed; (2) that the act was that of the debtor; (3) that it consisted of a transfer, removal, destruction, or concealment of the debtor’s - property, or, if the act occurred after the date the petition was filed, the property of the estate; and (4) that it was done with an intent to hinder, delay, or defraud either a creditor or an officer of the estate. See 11 U.S.C. § 727(a)(2); see also In re Korte, 262 B.R. at 472. Proof that a creditor or the estate was harmed as a result of the debtor’s act is not required under § 727. In re Richmond, 429 B.R. at 302 (citing In re Snyder, 152 F.3d 596, 601 (7th Cir.1998)). Failing to list assets on bankruptcy schedules and statements is tantamount to an act of concealment falling within the time frame required by either prong of § 727(a)(2). See Fowler v. Weathers (In re Weathers), No. 5:09-ap-7203, 2011 WL 3207950, at *3 (Bankr.W.D.Ark. July 21, 2011) (citing Cobb v. Hadley (In re Hadley), 70 B.R. 51, 53 (Bankr.D.Kan.1987)). It is generally acknowledged that “concealment is a continuing act.” Id. (quoting Peterson v. Hazen (In re Hazen), 37 B.R. 329, 332 (Bankr.M.D.Fla.1983)). The trustee contends that debtor’s discharge should be denied under § 727(a)(2) because he fraudulently transferred and concealed property when he mischaracterizfed his true interest in the Lake Park Loop property prior to filing his bankruptcy petition and failed to disclose all of his assets when he filed his petition and schedules. For the reasons stated below, the Court finds that the trustee met her burden of proof under § 727(a)(2)(A) and (B). The Court finds that the debtor transferred and concealed property within the one year period prior to filing his bankruptcy petition and that he continued to conceal property after he" }, { "docid": "1299777", "title": "", "text": "N. Res-nick & Henry J. Sommer eds., 16th ed. 2010) (“If the state law limitations period governing a fraudulent transfer action has not expired at the commencement of a bankruptcy case, the trustee may bring the action pursuant to section 544(b), provided that it is commenced within the section 546(a) limitations period.”); Richardson v. Preston (In re Antex, Inc.), 397 B.R. 168, 173-74 (1st Cir. BAP 2008); Sears Petroleum & Transp. Corp. v. Burgess Constr. Servs., Inc., 417 F.Supp.2d 212, 222-26 (D.Mass.2006); Picard v. Estate of Chais (In re Bernard L. Madoff Inv. Sec. LLC), 445 B.R. 206, 229-32 (Bankr.S.D.N.Y.2011); Bakst v. Lester (In re Amelung), Case No. 09-01719-PGH, 2010 WL 1417742, *8 (Bankr.S.D.Fla. April 7, 2010) (Section 546 “allows the Trustee to commence a § 544 action utilizing state law within two years [after the entry of the order for relief], provided however that the state law statute of limitations period had not expired at the time of the bankruptcy filing.”). The United States also argues that Congress did not waive sovereign immunity for application of section 546 to extend the time period for filing actions under section 544. Yet section 106 specifically waives sovereign immunity under section 546, including the provisions of section 546(a)(1) extending the time for a trustee to pursue avoidance actions under section 544. The only reasonable interpretation of sections 106(a), 544(b)(1) and 546(a)(1), together, is that the United States waived sovereign immunity with regard to avoidance actions under section 544 timely brought pursuant to section 546. It is undisputed that the tax payment occurred no later than October 20, 2006 and the Debtor filed its voluntary petition on November 13, 2008. The four-year statute of limitations provided by Florida Statutes section 726.110 had not expired as of the petition date. Pursuant to section 546, the applicable limitations period to file this adversary proceeding would have expired on May 13, 2011, one year after the Trustee became the permanent trustee under section 702. This adversary proceeding was filed prior to the May 13th deadline, on March 29, 2011. This adversary proceeding was timely filed. For" }, { "docid": "11612154", "title": "", "text": "not allowable only under section 502(e) of this title. I note that even though the trustee’s claim under § 544(b) derives from a claim held by an individual creditor, once the trustee undertakes the avoidance action, any recovery inures to the benefit of all creditors. E.g., In re Victor Intern., Inc., 278 B.R. 67, 84 n. 24 (Bankr.D.N.J.2002); see also In re PWS Holding Corp., 303 F.3d 308, 314 (3d Cir.2002) (''§ 544(b) places the debtor in possession in the shoes of its creditors, giving it the right to prosecute individual creditors’ fraudulent transfer claims for the benefit of the bankruptcy estate”). . In this Opinion, I will refer to 11 U.S.C. § 544(b) and PUFTA interchangeably. . 12 Pa.C.S. § 5104(a)(1) provides: A transfer made ... by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made ... if the debtor made the transfer ... with actual intent to hinder, delay or defraud any creditor of the debtor[J . In some circumstances, the date of the transfer may be later than the date of the consummation of the transaction (and therefore, captured by the two (2) year lookback). 11 U.S.C. § 548(d)(1) provides: For the purposes of this section, a transfer is made when such transfer is so perfected that a bona fide purchaser from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest in the property transferred that is superior to the interest in such property of the transferee, but if such transfer is not so perfected before the commencement of the case, such transfer is made immediately before the date of the filing of the petition. See also See 5 Collier on Bankruptcy ¶ 548.09[l][a] (Alan N. Resnick, Henry J. Sommer eds., 16th ed. 2010). . The Trustee also argued that the transfers at issue were all based upon intentional, rather than constructive fraud, and that her action was brought within the one (1) year ''discovery” period provided by 12 Pa.C.S. § 5109. In denying the Motion to Dismiss, I" }, { "docid": "5594587", "title": "", "text": "steward dictates that persons not be appointed as trustee if they have actual or potential conflicts of interest, or had been materially involved or acquainted with the debtor or parties in interest to the case before the bankruptcy filing. In practice, the United States Trustee vets such appointments on these sensitivities. In addition, interim trustees do the right thing, by resigning if such clouds emerge. . It is disconcerting that this line of authority keeps replicating itself. For the summary pronouncement — the one grounded in the \"policy” consideration and no more — the descendants only string-cite back to earlier decisions in the line and eventually to the treatise Collier on Bankruptcy. E.g., In re Trinsum Group, Inc., 460 B.R. 379, 390 (Bankr.S.D.N.Y.2011); In re Pharmacy Distrib. Servs., Inc., 455 B.R. 817, 823-824 (Bankr.S.D.Fla.2011); In re Bernard L. Madoff Inv. Secs. LLC, 454 B.R. 317, 337-338 (Bankr.S.D.N.Y.2011). But when the Collier source is consulted— currently at Alan N. Resnick and Henry J. Sommer eds., 5 Collier on Bankruptcy, ¶ 546.02[l][b] (16th ed. 2012) — there is only the same summarily-worded statement of the outcome. This section of Collier has no analysis of the statutes; and its sole cited authority is case law that used earlier updates of the same treatise as its primary authority! .In pertinent part, this statute provides: (a) If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of— (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) two years after the order for relief. The defense is correct in pointing out the fundamental error committed by those courts that rely on § 108(a) as authority for a tolling of limitations periods in actions under § 544. E.g., Lippe v. Bairnco Coip., 225 B.R. 846, 853 (S.D.N.Y.1998); In re Southern Health Care of" }, { "docid": "20576565", "title": "", "text": "from a lien or from a sale to enforce a lien in accordance with applicable law.” Fed. R. Bankr.P. 6008. However, pursuant to § 722, Rule 6008 is only applicable in Chapter 7 proceedings. Fed. R. Bankr.P. 6008 advisory committee notes. Moreover, an individual in a Chapter 7 proceeding can only redeem “tangible personal property,” not real property. 6 Collier on Bankruptcy ¶¶ 722.01~.02[1] (Alan N. Res- nick & Henry J. Sommer eds., 16th ed. 2014) (“Section 722 of the Bankruptcy Code provides that an individual debtor may redeem consumer goods from a lien securing a dischargeable consumer debt....”). Following the holding of the district court in In re Minor, “[n]either Rule 6008 nor § 108(b) require Debtor to file a motion or petition to redeem instead of filing a Chapter 13 plan to pay a secured claim under § 1322(b) where appropriate.” — B.R. at -, 2016 WL 1256286, at *13 (citing In re Kasco, 378 B.R. 207, 212-13 (Bankr.N.D.Ill.2007)). Moreover, the Minor court noted with approval the holding by the Seventh Circuit that “[t]he purpose behind section 108(b) is to permit the debt- or an extension of time for doing certain acts necessary to preserve his rights. It would be anomalous to apply it to restrict debtors’ rights.” Id. at -, n. 124, at *13, n. 124 (quoting Moody v. Amoco Oil Co., 734 F.2d 1200, 1216 (7th Cir.1984)). As in Minor, the Debtor in this case elected to modify the Purchaser’s secured claim .by paying the redemption amount over time under her Plan pursuant to § 1322(b)(2). This is distinguishable from a redemption under applicable state law, and the Debtor therefore does not need to take any action under state law to redeem the Property. See In re LaMont, 740 F.3d 397, 409 (7th Cir.2014) (stating that § 108(b) does not apply where a secured claim is disposed of under a debtor’s plan because the purchaser is “not formally redeeming the property”); In re Terry, 505 B.R. 660, 668 (Bankr.E.D.Pa.2014) (allowing a debtor to make redemption payments through a Chapter 13 plan); In re Hammond, 420 B.R." }, { "docid": "21273953", "title": "", "text": "263 B.R. at 611; see also In re Dennis, 330 F.3d 696, 702 (5th Cir.2003) (\"Although a transfer to a relative might suggest intent, a minimal transfer just as strongly suggests a lack of intent. Other courts agree that the low value of assets is one factor to be considered when determining whether the debtor had an intent to defraud.”) (internal quotes omitted). . In re Smiley, 864 F.2d 562, 569 (7th Cir.1989); see also Village of San Jose v. McWilliams, 284 F.3d 785, 793 (7th Cir.2002) (same, citing cases). . Marra, 308 B.R. at 630. . Smiley, 864 F.2d at 569 (“[W]here there is a material misrepresentation the degree of dishonesty is not measured. In addition, a fair reading of the statute makes it clear that so long as there is an intent to hinder delay, or defraud, in combination with an act such as a transfer, then a debtor should be denied the privilege of discharge. The statute does not provide that the creditors must have, in fact, been hindered, delayed or defrauded.”) (internal citation omitted); see also Mill Creek Lumber & Supply Co. v. Stripling, 135 B.R. 133 (N.D.Okla.1990), aff'd 947 F.2d 954 (10th Cir.1991) (rejecting the argument that “the transferred property must have some value” as a prerequisite to a finding of fraudulent intent). . In re Locke, 50 B.R. 443, 452 (Bankr.E.D.Ark.1985). .11 U.S.C. § 101(54). . S.Rep. No. 989, 95th Cong., 2d Sess. 27 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5813; see also Clark v. Wilbur (In re Wilbur), 211 B.R. 98, 104 (Bankr.M.D.Fla.1997) (citing Bernard v. Sheaffer (In re Bernard), 96 F.3d 1279, 1282 (9th Cir.1996)); Camacho v. Martin (In re Martin), 88 B.R. 319, 322-23 (D.Colo.1988) (denying discharge for hindrance and delay when debtor was clearly playing \"hide and seek” with bank account funds to thwart state court judgment creditor's collection activities). . Permitting a prohibited transfer or concealment to occur is likewise sufficient; no affirmative act of transfer or concealment is required. 11 U.S.C. § 727(a)(2). . 6 Collier on Bankruptcy ¶ 727.02[6][b] (Alan N. Resnick & Henry J. Sommer eds.," }, { "docid": "3447734", "title": "", "text": "for summary judgment”); Coley, 433 B.R. at 493 (\"proof of fraudulent intent is not especially susceptible to disposition by summary judgment”). . See, e.g., In re Jones, 445 B.R. 677, 723 (Bankr.N.D.Tex.2011); see also In re Gronlund, 2014 WL 4090433, at *5 (9th Cir. BAP Aug. 19, 2014); In re Svetc, 521 B.R. 892, 909-10 (Bankr.W.D.Ark.2014). In re Estes, 2014 WL 897325, at *23 (Bankr.N.D.Ala.Mar. 6, 2014). . See In re Corona, 2010 WL 1382122, at *14 (Bankr.D.N.J. Apr. 5, 2010); In re Blanchard, 201 B.R. 108, 121 (Bankr.E.D.Pa.1996). . The elements of a claim for denial of discharge under § 727(a)(4) based on false oath are: 1. the debtor made a false statement under oath; 2. the debtor knew the statement was false; 3. the debtor made the statement with the intent to deceive; and 4. the statement was material to the bankruptcy case. E.g., In re Singh, 433 B.R. 139, 154 (Bankr.E.D.Pa.2010) (citing cases). . Indeed, the failure to disclose assets frequently is raised as a ground for denial of discharge as a \"false oath\" under 11 U.S.C. § 727(a)(4). See, e.g., Cadle Co. v. Zofko, 380 B.R. 375, 382 (W.D.Pa.2007); In re Spitko, 357 B.R. 272, 312 (Bankr.E.D.Pa.2006). It also is not surprising that the Debtors have not suggested that the Plaintiff would be precluded from amending the Amended Complaint to raise their claims under 11 U.S.C. § 727(a)(4). See generally In re Jacobs, 401 B.R. 161, 174 (Bankr.E.D.Pa.2009) (amendments that merely change the party’s legal theory and that do not involve additional discovery, cost, and preparation are freely granted under Fed.R.Civ.P. 15). . The Debtors argue that the Plaintiff failed to properly respond to the Requests for Admissions because his response was unsigned as required by Fed.R.Civ.P. 36 (applicable in this adversary proceeding by Fed. R. Bankr.P. 7036) and therefore, that the Admissions are deemed admitted. (Debtors’ Mem of Law at 5). There is authority supporting the Debtors’ position. See Fireman’s Ins. Co. of Newark, New Jersey v. Herbert, 2005 WL 3536091, at *3 (E.D.Va. December 20, 2005); Hayes v. City of Brooklyn Park, 2005 WL" }, { "docid": "19767760", "title": "", "text": "re Myers, No. 07-80670, 2008 WL 2783455, at *3 (Bankr.M.D.Ala. June 26, 2008); In re Ward, 370 B.R. 812, 814-15 (Bankr. D.Neb.2007); In re Witherspoon, No. 06-05611, 2007 WL 5582729, at * 1-2 (Bankr. M.D.Tenn. Feb. 1, 2007); In re Graves, No. 06-10634, 2007 WL 1075108, at *4-8 (Bankr.D.Md. Jan.19, 2007); In re West, 352 B.R. 482, 487 (Bankr.E.D.Ark.2006). A few courts, it is true, have suggested in dicta that § 1328(f)(1) creates a discharge-date-to-filing-date time frame. See In re Sidebottom, 430 F.3d 893, 897 n. 1 (7th Cir.2005); In re Williams, 394 B.R. 550, 567 (Bankr.D.Colo.2008); In re Perkins, 381 B.R. 530, 536 n. 6 (Bankr.S.D.Ill.2007); In re Lilly, 378 B.R. 232, 234 (Bankr. C.D.Ill.2007); In re Selinsky, 365 B.R. 260, 263 (Bankr.S.D.Fla.2007). But to our knowledge every federal court to decide the question definitively has held that § 1328(f)(l)’s four-year embargo begins on the date of filing, not the date of discharge. See, e.g., In re Ybarra, 359 B.R. 702, 709 (Bankr.S.D.Ill.2007); In re Lems, 376 B.R. 849, 850-51 (Bankr.M.D.Tenn.2007); In re Knighton, 355 B.R. 922, 926 (Bankr. M.D.Ga.2006); McDow v. Ratzlaff (In re Ratzlaff, 349 B.R. 443, 444 (Bankr.D.S.C. 2006); In re McGhee, 342 B.R. 256, 258 (Bankr.W.D.Ky.2006); McDow v. Sours (In re Sours), 350 B.R. 261, 269 (Bankr. E.D.Va.2006); accord 8 Collier on Bank ruptcy ¶ 1328.06[1]-[2] (Alan N. Resnick & Henry J. Sommer eds., 15th ed.2007); William Houston Brown, Taking Exception to a Debtor’s Discharge: The 2005 Bankruptcy Amendments Make It Easier, 79 Am. Bankr.L.J. 419, 448-49 (2005). In resisting this reading, Carroll offers two reasons that the four-year clock should not start running until the date of the first discharge. First, she points to two other serial-filing provisions in chapter 7 that predate § 1328(f) and that impose parallel time limits on debtors seeking discharges. Section 727(a)(8) of the Code provides that, where a debtor files a petition for relief under chapter 7, the bankruptcy court “shall grant a discharge, unless ... the debtor has been granted a discharge under [chapter 7, chapter 11 or other various provisions] in a case commenced within 8" }, { "docid": "1591713", "title": "", "text": "and that of his wife, who proposed the transfer. Such a conveyance is fraudulent as to both present and future creditors under UFCA § 7. Having reached this conclusion, it is not necessary to consider whether the transfer of Brook Street was in violation of § 548 of the Bankruptcy Code. B. Denial of Discharge Both the Trustee and the Bank urge that William’s discharge be denied because the transfer of Brook Street is an event to which 11 U.S.C. § 727(a)(2)(A) applies. Because the transfer from William and Mary to MCO was actually more than three years before William filed his petition, however, there is no viable claim under the last cited statute unless the “continuous concealment” doctrine applies. That principle mandates denial of discharge when the debtor retains a secret interest in property which was transferred to another even outside of the one year period. The concealment of an interest in an asset that continues, with the requisite intent, into the year before bankruptcy constitutes a form of concealment which occurs in that year. Therefore, such concealment is within the reach of § 727(a)(2)(A). The generally cited case for this proposition is Thibodeaux v. Olivier (In re Olivier), 819 F.2d 550, 554 (5th Cir.1987). The doctrine has been recognized by the judges of this district. See Pelham Plate Glass, Inc. v. Charette (In re Charette), 148 B.R. 94, 96 (Bankr.D.Mass.1992) (Judge Kenner) (title transfer with attendant circumstances indicating bankrupt continues using property as his own constitutes concealment); In re MacDonald, 114 B.R. 326, 334 (Bankr.D.Mass.1990) (Judge Queenan) (Estate included stock although debtor’s father acquired legal title more than one year before petition). See also Nelson v. Peters (In re Peters), 106 B.R. 1, 4 (Bankr.D.Mass.1989) (Judge Gabriel). I agree with the reasoning and holdings of those cases. Not all concealments will justify denial of discharge. A debtor must intend to hinder, or delay, or defraud at least one creditor or an officer of the estate, and this intention must be actual: In the discussion of the fraudulent conveyance I found as a fact that William’s transfer was with" }, { "docid": "20990558", "title": "", "text": "D. Count II—Objection to Discharge Under Section 727(a) (2)-(5) & (7) Count II of the Amended Complaint alleges that Sobol violated § 727(a)(2)-(5) & (7). I will again strictly construe the exceptions to discharge against Symonies and liberally construe the language of the statute in favor of Sobol pursuant to In re Cohn and its progeny. In re Cohn, 54 F.3d at 1113; In re Marques, 358 B.R. at 193; In re Roemmele, 2011 WL 4804833, at *4. I will first analyze Symonies’ claim under § 727(a)(2). i. Section 727(a)(2) The relevant portion of § 727(a) reads as follows: (a) The court shall grant the debtor a discharge, unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; or (B) property of the estate, after the date of the filing of the petition 11 U.S.C. § 727. Essentially, a plaintiff must establish three elements to satisfy to satisfy its burden of proof under § 727(a)(2)(A). In re Spitko, 357 B.R. 272, 299 (Bankr.E.D.Pa.2006). First, the disposition of property, such as a transfer or concealment. In re Spitko, 357 B.R, at 299. Second, subjective intent by the debtor to hinder, delay, or defraud one or more creditors. Id. Third, both the disposition of property and subjective intent must have occurred within one year before the date of filing the petition. Id. The plaintiff bears the burden of proving these elements by a preponderance of the evidence. In re Lehmann, 511 B.R. 729, 734 (Bankr.M.D.Pa.2014). Similar to § 727(a)(2)(A), § 727(a)(2)(B) requires that a plaintiff first establish “an act, such as the transfer or concealment of estate property.” In re Luby, 438 B.R. 817, 828 (Bankr.E.D.Pa.2010); In re Finney, 333 B.R. 242, 247 (Bankr.W.D.Pa.2005). The transfer or concealment of estate property must occur after the petition date. 11 U.S.C. § 727(a)(2)(B); In re Finney, 333 B.R. at 247. Second, a plaintiff must also" }, { "docid": "3821653", "title": "", "text": "of any discharged debt as a personal liability of the debtor, including the continuation of legal process, offsets, or other collection efforts against the debtor, even if the debtor waived the right to discharge with respect to the debt.” Hon. Nancy C. Dreher, Hon. Joan N. Feeney and Michael J. Stepan, Esq. Bankruptcy Law Manual § 8:2 Vol. 2 (5th ed. 2013-1), pp. 7-9. In other words, “a discharge in bankruptcy relieves a debtor from all pre-petition debt, and § 524(a) permanently enjoins creditor actions to collect discharged debts”. Bes-sette v. Avco Fin. Services, Inc., 230 F.3d at 444. In Delgado Laboy v. First-Bank P.R. (In re Delgado Laboy), 2010 Bankr.Lexis 345 at **15-18, 2010 WL 427780 at **5-6 (Bankr.D.P.R.2010), this court summarized the effect of the discharge injunction in Section 524(a)(2) of the Bankruptcy Code as follows: The effect of a bankruptcy discharge is that it “operates as an injunction against the commencement or continuation of an action, the employment of process, or an act to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived.” 11 U.S.C. § 524(a)(2). The discharge injunction is the mechanism which allows the debtor to commence debt-free his or her fresh start. See In re Latanowich, 207 B.R. 326, 334 (Bankr.D.Mass.1997) (“The purpose of the permanent injunction set forth at § 524(a)(2) and reiterated in the discharge order is to effectuate one of the primary purposes of the Bankruptcy Code: to afford the debtor a financial fresh start.”); Green v. Welsh, 956 F.2d 30, 33 (2nd Cir.1992); Baker v. Sommerville Mun. Fed. Credit Union (In re Baker), 2006 WL 3370864, 2006 Bankr.Lexis 3183 (Bankr.D.Mass.2006). The discharge injunction is like a permanent extension of the automatic stay under 11 U.S.C. § 362(a) of the Bankruptcy Code and thus, includes all types of collection activity such as; letters, phone calls, threats of criminal proceedings or other adverse actions brought about with the purpose of debt repayment. See Alan N. Resnick & Henry J. Sommer, 4 Collier on Bankruptcy ¶ 524.02[2] (15th ed." }, { "docid": "11612155", "title": "", "text": "of the transfer may be later than the date of the consummation of the transaction (and therefore, captured by the two (2) year lookback). 11 U.S.C. § 548(d)(1) provides: For the purposes of this section, a transfer is made when such transfer is so perfected that a bona fide purchaser from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest in the property transferred that is superior to the interest in such property of the transferee, but if such transfer is not so perfected before the commencement of the case, such transfer is made immediately before the date of the filing of the petition. See also See 5 Collier on Bankruptcy ¶ 548.09[l][a] (Alan N. Resnick, Henry J. Sommer eds., 16th ed. 2010). . The Trustee also argued that the transfers at issue were all based upon intentional, rather than constructive fraud, and that her action was brought within the one (1) year ''discovery” period provided by 12 Pa.C.S. § 5109. In denying the Motion to Dismiss, I did not decide that question. . Specifically, the Trustee contends that, as of the commencement of this bankruptcy case, the Debtor owed a tax debt to the IRS in the amount of $249,435.00, based on unreported, taxable, non-dividend distributions in the years 2000, 2002 and 2003 and improperly recognized loss deductions in 2000 and 2002, all derived from his interest in the sub-chapter-S corporation, Auto Planet, Inc. (See Order dated September 26, 2013, slip op. at 3) (Doc. # 594). . In this proceeding, the analysis is complicated even further with respect to Counts V and VI, which raise both intentional and constructive fraud claims under 12 Pa.C.S. §§ 5104 and 5105. As Judge Fox observed in In re Spitko, 2007 WL 1720242, at *4 (Bankr.E.D.Pa. June 11, 2007). The allocation of the evidentiary burdens under Pennsylvania law for purposes of [constructive fraudulent transfers] ... is not clear.... Some decisions impose the burden of persuasion upon the plaintiff to demonstrate all of the elements of constructive fraud under PUFTA. Other decisions opine that, in certain" }, { "docid": "3939999", "title": "", "text": "523(a), it must nonetheless continue to pursue its pending objection to discharge under § 727(a). This is so because a creditor who initiates an objection to discharge under 11 U.S.C. § 727(a) does so on behalf of all creditors and “loses the ability to act solely in its own interest.” In re Childs, 2006 WL 6508183, at *4-5 (Bankr.N.D.Tex. Mar.30, 2006) (citing Young v. Higbee Co., 324 U.S. 204, 212-13, 65 S.Ct. 594, 89 L.Ed. 890 (1945)), aff'd 2007 WL 92392 (N.D. Tex. Jan 12, 2007). A. 1. Section 727(a)(2)(A) of the Bankruptcy Code bars the entry of a discharge if: the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition.... 11 U.S.C. § 727(a)(2)(A). Denial of discharge is considered a harsh remedy that is “not to be taken lightly.” Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). Under § 727(a)(2)(A), a party seeking to bar a debtor’s discharge must show: 1. an act, such as a transfer or concealment of property in which the debt- or has a direct proprietary interest; 2. the debtor’s subjective intent to hinder, delay, or defraud a creditor; and 3. that such act and the debtor’s subjective intent occurred within the one year period preceding the filing of the bankruptcy petition. See id.; In re Spitko, 357 B.R. 272, 299 (Bankr.E.D.Pa.2006); accord In re DiLoreto, 266 Fed.Appx. 140, 144 (3d Cir.2008) (nonprecedential). The plaintiff bears the burden of proving these three requirements by a preponderance of the evidence. Spitko, 357 B.R. at 298; In re Kisberg, 150 B.R. 354, 357 (Bankr.M.D.Pa.1992). 2. In its Memorandum of Law in support of the Motion, GMAC does not articulate how the undisputed facts satisfy the elements for denial of discharge under § 727(a)(2)(A), apparently assuming that it is self-evident that the asserted undisputed facts satisfy each" }, { "docid": "208751", "title": "", "text": "of the filing of the petition ... 11 U.S.C. § 727(a)(2)(A). In order to sustain a claim under § 727(a)(2)(A), a creditor must prove the following elements: (1) that the act complained of was done at a time subsequent to one year before the date of the filing of the petition; (2) with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under the Bankruptcy Code; (3) that the act was that of the debtor or his duly authorized agent; (4) that the act consisted of transferring, removing, destroying or concealing any of the debtor’s property, or permitting any of these acts to be done, (footnote omitted) 4 Collier on Bankruptcy, If 727.02[l][b] at 727-10 (15th ed. 1983). Accord, First National Bank & Trust Co. v. Reed (In re Reed), 18 B.R. 462 (Bkrtcy.E.D.Tenn.1982). See Also, City National Bank v. Bateman (In re Bateman), 646 F.2d 1220, 7 B.C.D. 760 (8th Cir.1981) (Detailing nearly identical elements under section 14c(4) of The Bankruptcy Act from which § 727(a)(2)(A) is derived). Furthermore, under Bankruptcy Rule 4005, plaintiff has the burden of proving the facts essential to an objection to discharge of the debtor. “Insufficient or nonexistent evidence cannot carry the burden of proof contemplated ...”- First National Bank v. Peterson (In re Peterson), 2 B.R. 402, 403 (S.D.Ga.1980) (construing former Rule 407). If the proof is insufficient on any one of these essential elements, the objection to discharge cannot be sustained. See In re Bateman, supra, 646 F.2d at 1222, 7 B.C.D. at 762. At the trial on the present matter, the Court granted defendants’ motion for involuntary dismissal under Rule 41(b) Fed.F. Civ.P., applicable in adversary proceedings in bankruptcy under Bankruptcy Rule 7041, since plaintiffs had failed to prove either that the transfers in issue occurred within the 12 month period stated in § 727(a)(2)(A) or that there was a continuing concealment sufficient to bring the transfers within the exception to discharge. Each of the transfers of real or personal property that occurred in this case occurred outside the “one year" }, { "docid": "21273954", "title": "", "text": "(internal citation omitted); see also Mill Creek Lumber & Supply Co. v. Stripling, 135 B.R. 133 (N.D.Okla.1990), aff'd 947 F.2d 954 (10th Cir.1991) (rejecting the argument that “the transferred property must have some value” as a prerequisite to a finding of fraudulent intent). . In re Locke, 50 B.R. 443, 452 (Bankr.E.D.Ark.1985). .11 U.S.C. § 101(54). . S.Rep. No. 989, 95th Cong., 2d Sess. 27 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5813; see also Clark v. Wilbur (In re Wilbur), 211 B.R. 98, 104 (Bankr.M.D.Fla.1997) (citing Bernard v. Sheaffer (In re Bernard), 96 F.3d 1279, 1282 (9th Cir.1996)); Camacho v. Martin (In re Martin), 88 B.R. 319, 322-23 (D.Colo.1988) (denying discharge for hindrance and delay when debtor was clearly playing \"hide and seek” with bank account funds to thwart state court judgment creditor's collection activities). . Permitting a prohibited transfer or concealment to occur is likewise sufficient; no affirmative act of transfer or concealment is required. 11 U.S.C. § 727(a)(2). . 6 Collier on Bankruptcy ¶ 727.02[6][b] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.). . Self, 325 B.R. at 238 (internal citations and quotes omitted). . In re Scott, 172 F.3d 959, 967 (7th Cir.1999) (internal citations and quotes omitted) (citing U.S. v. Turner, 725 F.2d 1154, 1157 (8th Cir.1984)) (\"Clearly concealment means more than 'secreting'; one does not have to put something in a hidden compartment, a safe, or a hole in the backyard in order to 'conceal' it. It is enough that one 'withholds knowledge,’ or 'prevents disclosure or recognition.' \"). It is worth noting that the Tenth Circuit has opined in dicta that \"the inference of fraudulent behavior flowing from a concealment is greater than from a transfer.” Brown, 108 F.3d at 1293 n. 1. . Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993) (cited by In re Kontrick, 295 F.3d 724 (7th Cir.2002)). . Id. (citing In re Olivier, 819 F.2d 550, 555 (5th Cir.1987)). . Cf. In re Stewart, 263 B.R. 608 (10th Cir. BAP 2001) (rejecting appellant's contention that the debtors’ failure to disregard the corporate form postpetition as" } ]

[ { "docid": "23530981", "title": "", "text": "for all the time spent in joint preparation. See Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414, 420 (3d Cir.1993) (if fees incurred in other litigation were for work product actually utilized, time spent in other litigation was “inextricably linked” to issues in present litigation, and plaintiff was not previously compensated, court may include all fees); Nanetti v. University of Ill. at Chicago, 944 F.2d 1416, 1419 (7th Cir.1991) (time for joint preparation allowed even where only one claim produces recovery). Accordingly, we affirm the attorney’s fees award. III. Costs We agree with L’Eggs that costs for long distance and fax ($4,664.89) and for messenger and express mail ($1,606.10) are not “exemplification and copies of papers necessarily obtained for use in the case” under 28 U.S.C. § 1920(4). We believe that their inclusion was harmless error, however, because such costs were reasonable out-of- pocket expenses of the kind normally charged to clients by attorneys, and thus should have been included as part of the reasonable attorney’s fees awarded. See West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 87 n. 3, 111 S.Ct. 1138, 1141 n. 3, 113 L.Ed.2d 68 (1991); Chalmers v. City of Los Angeles, 796 F.2d 1205, 1216 n. 7 (9th Cir.1986) (out-of-pocket litigation expenses reimbursable as part of attorney’s fees); Laffey v. Northwest Airlines, Inc., 241 U.S.App.D.C. 11, 746 F.2d 4, 30 (1984) (same), cert. denied, 472 U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985); Northcross v. Board of Educ., 611 F.2d 624, 639 (6th Cir.1979) (reasonable out-of-pocket expenses incurred by attorney which normally are charged to fee-paying client were includable in 42 U.S.C. § 1988 “attorney’s fee” award), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 3000, 64 L.Ed.2d 862 (1980). As for Pinkham’s cross-appeal concerning expert witness fees, 28 U.S.C. § 1821 provides that, “[e]xcept as otherwise provided by law,” witness fees and allowances are limited to that set forth in the statute ($40 per day). Pinkham argues that 17 U.S.C. § 505’s “full costs” language comes within the “otherwise provided by law” exception and is sufficient authority to" } ]

[ { "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": "19905849", "title": "", "text": "expenses incurred by an attorney which would normally be charged to a fee paying client are recoverable as attorney’s fees under section 1988.”). More recently, in Redland Insurance, we addressed whether computerized research costs were recoverable under ERISA’s expense-shifting provision, which, like the FCRA’s expense-shifting provision, authorizes the recovery of “reasonable attorney’s fees and costs of the action.” Redland Ins. Co., 460 F.3d at 1256 (quoting 29 U.S.C. § 1132(g)(2)(D)). In considering the use of the term “attorney’s fees” in ERISA’s fee shifting provision, we observed that “[i]t is well established that attorney’s fees under 42 U.S.C. § 1988 include reasonable out-of-pocket litigation expenses that would normally be charged to a fee paying client, even if the court cannot tax these expenses as ‘costs’ under 28 U.S.C. § 1920.” Id. at 1257. We also noted that “[flower courts in this circuit have, without comment, applied the interpretation of attorney’s fees in § 1988 to other fee-shifting statutes in order to award expenses that do not fall within the scope of § 1920.” Id. at 1257-58. Discussing the Court’s decisions in Casey and Jenkins, we endorsed this view, holding “that reasonable charges for computerized research may be recovered as ‘attorney’s fees’ under § 1132(g)(2)(D) if separate billing for such expenses is ‘the prevailing practice in the local community.’ ” Id. at 1258-59 (quoting Jenkins, 491 U.S. at 287, 109 S.Ct. 2463); see also id. at 1258 (discussing a “growing circuit consensus reflecting] the Supreme Court’s treatment of litigation expenses under attorney’s fee statutes”). The other circuit courts that have examined this question agree that expenses other than those expressly listed in § 1920 are recoverable under statutes providing for the recovery of “attorney’s fees.” For instance, in Central Soya Company v. Geo. A. Hormel & Co., 723 F.2d 1573 (Fed.Cir. 1983), the Federal Circuit was called upon to determine whether certain litigation expenses were available under a patent infringement statute, which provided that “a court ‘in exceptional cases may award reasonable attorney fees to the prevailing party.’” Id. at 1577 (quoting 35 U.S.C. § 285). Upholding the district court’s award of" }, { "docid": "19905848", "title": "", "text": "part of a reasonable attorneys’ fee since they are typically charged to paying clients by private attorneys.” Id. at 1556. Similarly, in Davis v. Mason County, 927 F.2d 1473 (9th Cir.1991), we affirmed an award of travel expenses under a statute providing district courts with discretion to allow the prevailing party reasonable attorney’s fees as part of the costs of the action. Id. at 1488; 42 U.S.C. § 1988. We rejected the defendant’s argument that costs should be limited to those available under § 1920, explaining that the defendant “fails to see that ... travel expenses were not granted as costs under section 1920, but rather as out-of-pocket expenses, compensable under section 1988.” Davis v. Mason County, 927 F.2d at 1488. We further observed that “[clourts have generally held that expenses incurred during the course of litigation which are normally billed to fee-paying clients should be taxed under section 1988.” Id.; see also Chalmers v. City of Los Angeles, 796 F.2d 1205, 1216 n. 7 (9th Cir.1986) (“Even though not normally taxable as costs, out-of-pocket expenses incurred by an attorney which would normally be charged to a fee paying client are recoverable as attorney’s fees under section 1988.”). More recently, in Redland Insurance, we addressed whether computerized research costs were recoverable under ERISA’s expense-shifting provision, which, like the FCRA’s expense-shifting provision, authorizes the recovery of “reasonable attorney’s fees and costs of the action.” Redland Ins. Co., 460 F.3d at 1256 (quoting 29 U.S.C. § 1132(g)(2)(D)). In considering the use of the term “attorney’s fees” in ERISA’s fee shifting provision, we observed that “[i]t is well established that attorney’s fees under 42 U.S.C. § 1988 include reasonable out-of-pocket litigation expenses that would normally be charged to a fee paying client, even if the court cannot tax these expenses as ‘costs’ under 28 U.S.C. § 1920.” Id. at 1257. We also noted that “[flower courts in this circuit have, without comment, applied the interpretation of attorney’s fees in § 1988 to other fee-shifting statutes in order to award expenses that do not fall within the scope of § 1920.” Id. at 1257-58." }, { "docid": "10693670", "title": "", "text": "§ 1988). “The amount of damages a plaintiff recovers is ... one of many factors that a court must consider when calculating an award of attorneys’ fees.” Green, 284 F.3d at 663. Because the attorney’s fee award may be subject to recalibration that would impact the arguments raised in this appeal, we decline to address Nabors’ attorney’s fee challenges, and we vacate and remand the award for further proceedings. B We also vacate the award of out-of-pocket expenses because the district court may determine on remand that they should be adjusted in view of our decision today and additional necessary proceedings on remand. The district court awarded West $5,860.03 in costs, which included his requests for $1,210.23 and $380.05 in travel mileage, hotel expenses, and meals, and $245.00 for a videographer fee. The court reasoned that the costs West sought “are the type ordinarily associated with those billed to the client and are reasonable.” R. 216. The court also concluded that 28 U.S.C. § 1920 did not control the award of these expenses. It held that “[t]he recoverable costs in civil rights litigation allowed under the authority of an award of a reasonable attorney’s fee can be distinct from those available under 28 U.S.C. § 1920.” Id. (citing Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1144 (7th Cir.1993)). To assist the district court and the parties on remand, we reject Nabors’ contention that travel expenses per se are not recoverable. Although we recognize that the authority to award attorney’s fees under the ADEA is not derived from 42 U.S.C. § 1988, other circuits have applied § 1988 jurisprudence in determining that out-of-pocket travel expenses are recoverable under the ADEA as part of an attorney’s fee award. See, e.g., Neufeld v. Searle Labs., 884 F.2d 335, 342 (8th Cir.1989); Heiar v. Crawford County, Wis., 746 F.2d 1190, 1203 (7th Cir.1984). It does not appear that we have had occasion to address this precise question, but we have affirmed awards of out-of-pocket travel expenses as components of attorney’s fee recoveries under § 1988. See, e.g., Associated Builders & Contractors of" }, { "docid": "9354936", "title": "", "text": "has explained, Rule 54(d) does not give a court “unrestrained discretion to tax costs to reimburse a winning litigant for every expense [she] has seen fit to incur.... [I]tems proposed by winning parties as costs should always be given careful scrutiny.” Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964). Rule 54(d) works in tandem with 28 U.S.C. § 1920. The taxable costs which may be recovered as specified in 28 U.S.C. § 1920 include: (1) fees of the clerk; (2) fees for transcripts; (3) fees for printing and witnesses; (4) fees for copies of papers “necessarily” used in the case; (5) docketing fees; and (6) compensation of court-appointed experts and interpreters. 28 U.S.C. § 1920. However, 28 U.S.C. § 1920 is not- the court’s sole source of authority in determining which costs and expenses are recoverable by a prevailing party. Title 42 U.S.C. § 1988(b) provides: “In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title ... 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.... ” Some “costs” that are not available under 28 U.S.C. § 1920 are recoverable as “reasonable out-of-pocket expenses of the kind normally charged to clients by attorneys, and thus should [be] included as part of the reasonable attorney’s fees awarded” under 42 U.S.C. § 1988. Pinkham v. Camex, Inc., 84 F.3d 292, 294-95 (8th Cir.1996) (per curiam) (citations omitted); accord Martin v. City of Indianapolis, 28 F.Supp.2d 1098, 1107 (S.D.Ind.1998) (“[S]ome of the costs listed by [plaintiffs] counsel, including travel expenses, long-distance telephone calls, photocopying services and express mail charges, are more properly labeled ‘litigation expenses,’ which generally are com-pensable as part of a reasonable attorney’s fee, rather than costs.”), aff'd, 192 F.3d 608 (7th Cir.1999) (citing Pinkham, 84 F.3d at 294-95); Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1144 (7th Cir.1994); Bennett v. Central Telephone Co. of Illinois, 619 F.Supp. 640, 643 n. 1 (N.D.Ill.1985) (“Such" }, { "docid": "10247446", "title": "", "text": "Corp., 95 F.3d 153, 173 (2d Cir.1996); Haroco, Inc. v. American Nat'l Bank & Trust Co. of Chicago, 38 F.3d 1429, 1440-41 (7th Cir.1994); In the Matter of Continental Illinois Secs. Litig., 962 F.2d 566, 570 (7th Cir.1992); Gregory v. Weigler, 873 F.Supp. 1189, 1199 (C.D.Ill.1995); Aloha Tower Associates Piers 7, 8, and 9, Ltd. Partnership v. Millennium Aloha, Inc., 938 F.Supp. 646, 649 (D.Hawaii 1996); Hurley v. Atlantic City Police Dep't, 1996 WL 549298, *3 (D.N.J.); Brown v. Pro Football. Inc., 839 F.Supp. 905, 916 (D.D.C.1993), modified on other grounds, 846 F.Supp. 108 (D.D.C.1994). This Court agrees with the reasoning of the Seventh Circuit in Haroco: The added cost of computerized research is normally matched with a corresponding reduction in the amount of time an attorney must spend researching. Therefore, we see no difference between a situation where an attorney researches manually and bills only the time spent and a situation where the attorney does the research on a computer and bills for both the time and the computer fee. In both cases the ■total costs are attorney’s fees____ Haroco, 38 F.3d at 1440-41. CABOR’s request for reimbursement of expenses for computerized legal research is reasonable and adequately documented. Furthermore, it is supported by an affidavit stating that the expenses, which were indeed billed to CABOR, are of the type normally billed separately to clients. See Second Supp. Aff. of D. Hammer. Therefore, this Court, following other courts allowing prevailing parties to be reimbursed under § 1988 for computer research fees, awards CABOR $8,429.86 in expenses for computerized legal research. Photocopying and communication charges CABOR requests $10,473.64 for photocopying expenses, and $1,012.57 for “communication charges,” including expenses incurred for fax transmittals, messenger services, postage and telephone use. It is clear that such expenses, if reasonable, are recoverable under § 1988, see, e.g., Northcross, 611 F.2d at 639, and Euclid does not contend otherwise. Rather, Euclid argues that these expenses should be disallowed because they are not properly documented. Contrary to Euclid’s contention, CABOR has adequately documented these expenses with individual receipts and billing records. These charges were actually incurred," }, { "docid": "11489311", "title": "", "text": "total claimed for computer research is reasonable and recoverable. “Computer research fees are typically billed to paying clients and should therefore be recoverable in a fee petition.” Butler v. Shalala, No. 92-C-145, 1995 WL 314595, at *5 (N.D.Ill. May 22, 1.995); Elcyzyn v. Brown, 7 Vet.App. 170, 183 (1994) (awarding computer research costs incurred “in preparation for the proceedings ... [since] such costs are customarily charged to the client where these proceedings took place”). 2. Long Distance Calls: The plaintiff requests expenses for long distance telephone calls totaling $80.49. See Attorney statements of Karl Dix, George Papaioanou and Jimmy McLemore setting forth bills of $29.25, $38.01 and $12.53. The court finds that $80.49 is reasonable and compensable under the EAJA. See Jean, 863 F.2d at 778. 3. Photocopying and Facsimile: The plaintiffs facsimile costs total $364.50 ($96.00 + $20.50 + 248.00), and photocopying fees amount to $403.75 ($63.25 + 73.25 + $267.25). As already stated, both facsimile and photocopying expenses are recoverable under the EAJA, see Jean, supra. Based upon the complexity of the case and the pertinent documents which were necessary to litigate and settle this action, however, the court finds this amount excessive and will reduce it by one-half. Hence, the plaintiff may recover $384.14 for these expenses. 4. Postage, UPS Delivery & Federal Express: The court will allow the plaintiff to recover expenses for postage ($8.09) and UPS delivery ($21.00) as listed in the attorney statements submitted in support of the EAJA application. See PL’s Appl. for Fees, Expenses & Costs under the EAJA, filed Nov. 14, 1994. Likewise, the plaintiff may recover $40.80 for postage, express mail and certified mail expenses as claimed by Jimmy McLemore. See John C. Grimberg Co., ASBCA 32490, 88-3 BCA ¶ 20,860 (1988). 5. Filing Fee: Plaintiff also may recover as costs the clerk filing fee of $120.00. 28 U.S.C. § 2412(a) states that “a judgment for costs, as enumerated in section 1920 of this title ... may be awarded to the prevailing party in any civil action by or against the United States ...” According to § 1920, “[a] judge" }, { "docid": "11605870", "title": "", "text": "Thus, Plaintiffs have not met their burden of adequately documenting that their out-of-pocket expenses were “incurred in order for the attorney to be able to render his or her legal services.” Abrams, 50 F.3d at 1225. A. Court Reporting Services Shapiro & Croland seeks to recover $785 for court reporting services. Court reporting services are recoverable as taxable expenses under 28 U.S.C. § 1920(2). Thus, the Court shall award the full amount requested. B. Computerized Legal Research Gold, Farrell seeks to recover $5,486.31 in LEXIS and other computer research. The use of Lexis [or Westlaw] allows for quicker research and access to the most recent case law, therefore, it allows for more efficient use of an attorney’s time. Furthermore, it is the type of expense that attorneys bill separately to their clients. See Abrams, 50 F.3d at 1225. Thus, fee applicants are generally compensated for reasonable expenses such as costs stemming from computer research. See O’Farrell v. Twin Bros. Meats, Inc., 889 F.Supp. 189, 192 (E.D.Pa.1995); Haroco, Inc. v. American Nat’l Bank & Trust Co. of Chicago, 38 F.3d 1429, 1440 (7th Cir.1994) (“[W]e see no difference between a situation where an attorney researches manually and bills only the time spent and a situation where the attorney does the research on the computer and bills both the time and the computer fee. In both cases the total costs are attorneys’ fees.”); see also Cappeletti Bros., Inc. v. Broward County, 754 F.Supp. 197, 198 (S.D.Fla.1991). Plaintiffs have failed to itemize their research. Thus, the Court is unable to determine what percentage of the computerized legal research costs were incurred in connection with the contempt motion. Further, the Court is unable to determine whether Plaintiffs’ expenses are reasonable. Thus, the Court will reduce the computerized legal research costs by 75 percent. C. Duplicating Expenses Gold, Farrell seeks to recover $5,077.04 in duplicating costs and Shapiro & Croland seeks to recover $56.70 for the same. Photocopying expenses are generally recoverable as long as the cost per page and the number of copies was not excessive and the copies were reasonably related to the" }, { "docid": "22476430", "title": "", "text": "by plaintiffs, including expenses for “duplicating, postage, telephone, computerized legal research and other office expenses,” on the ground that “[mjost of these would appear to be attorney’s ordinary overhead and ... would not be normally charged to fee paying clients.” Fee Decision at 10-11 (emphasis added). Many of the categories referred to, however, are not properly treated as overhead expenses for purposes of a fee award but are the sort of expenses that may ordinarily be recovered. See, e.g., Kuzma v. Internal Revenue Service, 821 F.2d 930, 933-34 (2d Cir.1987) (“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 and Human Services, 808 F.2d 9, 12 (2d Cir.1986) (postage, photocopying, travel, and telephone costs reimbursable under Equal Access to Justice Act, 28 U.S.C. § 2412); Abrams v. Lightolier Inc., 50 F.3d 1204, 1225 (3d Cir.1995) (reproduction and postage expenses may be recovered under § 1988); see also United States ex rel. Evergreen Pipeline Construction Co. v. Merritt Meridian Construction Corp., 95 F.3d 153, 173 (2d Cir.1996) (computerized research expenses recoverable as part of attorneys’ fees, rather than as costs).' On remand, the district court should reconsider plaintiffs’ claim for expenses and articulate which expenses, if any, it deems not reimbursable. E. Proceedings on Remand On remand, in addition to reconsidering the request for costs in accordance'with the preceding, section, the district court should calculate the amount of a reasonable fee to be awarded to plaintiffs in light of their substantial victory against the Village. The court should bear in mind that “[t]he function of an award of attorney’s fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel,” Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982), and that the fee awarded should therefore be “adequate to attract competent counsel,” Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct 1541," }, { "docid": "10247443", "title": "", "text": "insufficient documentation (.10 x $341,673.74 = $34,167.37); the fee request for attorney and paralegal time at the trial level is reduced 10% for excessive and duplicative hours (.10 x $298,113.70 = $29,811.37); and the fee request for attorney time at the trial level is reduced by 2% for clerical and secretarial work (.02 x $267,471.00 = $5,349.42). Therefore, the request is reduced by a total of $69,328.16, for a total of $272,345.58. B. Costs and Expenses CABOR seeks $48,404.97 in costs and expenses, including $144.00 for court fees; $16,610.51 for costs in connection with court reporting, depositions and transcripts; $3,429.86 for computerized research; $8,513.47 for expert witness fees; $10,473.64 for photocopying; $1,012.57 for communication; $3,216.37 for overtime (clerical); $312.69 for auto mileage and parking; and $4,691.86 for “costs and disbursements incurred on appeal.” In Northcross, the Sixth Circuit explained the two types of expenses recoverable by prevailing parties in civil rights litigation. There are two separate sources of authority to award out-of-pocket expenses. Some expenses are included in the concept of attorney’s fees, as “incidental and necessary expenses incurred in furnishing effective and competent representation,” and thus are authorized by section 1988____ The authority granted in section 1988 to award a “reasonable attorney’s fee” included the authority to award those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services. Reasonable photocopying, paralegal expenses, and travel and telephone costs are thus recoverable pursuant to the statutory authority of § 1988. Other costs are on a different footing. These include those costs incurred by a party to be paid to a third party, not the attorney for the case, which cannot reasonably be considered to be attorney’s fees ... These include, among others, docket fees, investigation expenses, deposition expenses, witness expenses, and the costs of charts and maps. Most of these expenses have long been recoverable, in the court’s discretion as costs, pursuant to 28 U.S.C. § 1920.... Northcross, 611 F.2d at 639 (citations omitted) The expenses sought by CAB OR are of both types. 1. Expenses recoverable under" }, { "docid": "5434673", "title": "", "text": "Searle Laboratories, 884 F.2d 335, 342 (8th Cir.1989). (holding that district court abused its discretion in refusing to include in its attorney’s fees award the deposition-related travel expenses incurred by prevailing plaintiffs counsel in an ADEA case). Thus, even though plaintiffs improperly included in their bill of costs certain out-of-pocket expenses not taxable as costs, those expenses may in fact be recoverable as part of their reasonable attorneys fees. With these general principles in mind, the Court will examine plaintiffs’ claims and defendants’ objections. II. Costs and Out-of-Pocket Expenses A. Photocopying expenses Plaintiffs’ bill of costs lists $29,-449.93 in photocopy expenses, which plaintiffs claim as “fees for exemplification and copies of papers necessarily obtained for use in the case,” under § 1920(4). The Court agrees with defendants that plaintiffs have failed to show what, if any, of these photocopy expenses are properly taxable. Under subsection (4) of § 1920, plaintiffs could have legitimately listed amounts they paid to others for production of documents, or could have charged their own photocopy expenses for copying the numerous exhibits that they introduced at trial. Under the costs statute, however, plaintiffs may not recover the photocopy expenses that they incurred in copying their own pleadings and motions for filing with the Court, serving on opposing counsel, or transmitting to their clients; nor does the cost statute cover a party’s copying of documents to be produced in discovery, or copying research materials for the convenience of counsel. These are not taxable costs under the statute, because they are not copies of papers “necessarily obtained for use in the case.” See McIlveen v. Stone Container Corp., 910 F.2d 1581, 1584 (7th Cir.1990); Thomas v. Treasury Management Ass’n, 158 F.R.D. 364, 372 (D.Md.1994); cf. Jones v. Unisys Corp., 54 F.3d 624, 633 (10th Cir.1995) (holding that the district court did not abuse its discretion in denying, inter alia, “costs for ‘internal copying’ of documents by [prevailing defendant’s] counsel produced for discovery”). Because plaintiffs have failed to segregate their properly taxable photocopying costs, none of the photocopying charges that they claim will be taxed as costs. , These" }, { "docid": "13400022", "title": "", "text": "reimbursement for all reasonable out-of-pocket expenses incurred by prevailing counsel which normally are charged separately to fee-paying clients and which are not incorporated as part of office overhead into the attorneys’ billing rates. See Kuzma v. I.R.S., 821 F.2d 930, 933-34 (2d Cir.1987) (§ 1988 fees include recovery of photocopying, travel and telephone costs, as distinct from “nonrecoverable routine office overhead”); Mennor v. Fort Hood National Bank, 829 F.2d 553, 556-57 (5th Cir.1987) (allowing recovery for postage, long-distance telephone calls and travel in Title VII case); Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 30 (D.C.Cir.1984); Henry v. Weber- meier, 738 F.2d 188, 192 (7th Cir.1984); Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir.1983). The question of expert witness fees has always divided the courts of appeals, however, with some courts holding that these expenses are recoverable as part of the attorneys’ fees, see Heiar v. Crawford County, 746 F.2d 1190, 1203-04 (7th Cir.1984); and others holding that § 1988 does not authorize compensation for “nonlegal experts.” Davis v. Richmond, Fredericksburg and Potomac R.R., 803 F.2d 1322, 1328 (4th Cir.1986). In Northcross, the Sixth Circuit ruled that, “The authority granted in section 1988 to award a ‘reasonable attorney’s fee’ included the authority to award those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services. Reasonable photocopying, paralegal expense, and travel and telephone costs are thus recoverable pursuant to the statutory authority of § 1988.” 611 F.2d at 639. In contrast, “docket fees, investigation expenses, deposition expenses, witness expenses and the costs of charts and maps” are recoverable, “in the court’s discretion as costs, pursuant to 28 U.S.C. § 1920.” Id. at 639, 642. In Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed. 2d 385 (1988), the Supreme Court held that, “absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant’s witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920.” Although the Crawford Court" }, { "docid": "10247444", "title": "", "text": "and necessary expenses incurred in furnishing effective and competent representation,” and thus are authorized by section 1988____ The authority granted in section 1988 to award a “reasonable attorney’s fee” included the authority to award those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services. Reasonable photocopying, paralegal expenses, and travel and telephone costs are thus recoverable pursuant to the statutory authority of § 1988. Other costs are on a different footing. These include those costs incurred by a party to be paid to a third party, not the attorney for the case, which cannot reasonably be considered to be attorney’s fees ... These include, among others, docket fees, investigation expenses, deposition expenses, witness expenses, and the costs of charts and maps. Most of these expenses have long been recoverable, in the court’s discretion as costs, pursuant to 28 U.S.C. § 1920.... Northcross, 611 F.2d at 639 (citations omitted) The expenses sought by CAB OR are of both types. 1. Expenses recoverable under 42 U.S.C. § 1988 An attorney’s fee under § 1988 includes those expenses that are incurred in order for the attorney to render his or her legal services and that would normally be charged to a fee-paying client. See. e.g., id.; Abrams v. Lightolier, 50 F.3d 1204, 1225 (3d Cir.1995); Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.1994); Associated Builders & Contractors v. Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir.1990); Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir.1983). Thus, “reasonable expenses, though greater than taxable costs, may be proper.” Harris, 24 F.3d at 20. Routine expenses which are incorporated into attorneys’ rates as routine office overhead are not recoverable, however. See, e.g., Abrams, 50 F.3d at 1225; Kuzma v. IRS, 821 F.2d 930, 933-34 (2d Cir.1987); Knop, 712 F.Supp. at 588. Computerized Research Although the cost of computerized research is not recoverable under § 1920, this Court finds that it is properly considered as part of an attorney’s fee under § 1988. See, e.g., United States v. Merritt Meridian Const." }, { "docid": "10693671", "title": "", "text": "that “[t]he recoverable costs in civil rights litigation allowed under the authority of an award of a reasonable attorney’s fee can be distinct from those available under 28 U.S.C. § 1920.” Id. (citing Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1144 (7th Cir.1993)). To assist the district court and the parties on remand, we reject Nabors’ contention that travel expenses per se are not recoverable. Although we recognize that the authority to award attorney’s fees under the ADEA is not derived from 42 U.S.C. § 1988, other circuits have applied § 1988 jurisprudence in determining that out-of-pocket travel expenses are recoverable under the ADEA as part of an attorney’s fee award. See, e.g., Neufeld v. Searle Labs., 884 F.2d 335, 342 (8th Cir.1989); Heiar v. Crawford County, Wis., 746 F.2d 1190, 1203 (7th Cir.1984). It does not appear that we have had occasion to address this precise question, but we have affirmed awards of out-of-pocket travel expenses as components of attorney’s fee recoveries under § 1988. See, e.g., Associated Builders & Contractors of La., Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir.1990) (holding that “[a]ll reasonable out-of-pocket expenses, including charges for ... travel, ... are plainly recoverable in section 1988 fee awards because they are part of the costs normally charged to a fee-paying client.” (citing cases)). We have also held that travel expenses are recoverable under Title VII, another civil rights statute, as part of an attorney’s fee award. See Mota, 261 F.3d at 529. Although ADEA attorney’s fees are recoverable under a provision of the ADEA itself and not under § 1988, we see no reason not to follow the lead of our sister circuits. Accordingly, the district court is not precluded on remand from awarding, as part of attorney’s fees, out-of-pocket expenses for travel. The district court should not, however, award the videographer fee. West has not cited any authority that supports recovery of such an expense as part of an attorney’s fee award under § 1988 or any other fee-shifting statute. We have explicitly held that videographer fees are not" }, { "docid": "11605869", "title": "", "text": "her legal services” are reimbursable. See id. In this Circuit, the following expenses are generally recoverable as part of attorneys’ fees “when it is the custom of attorneys in the local community to bill their clients separately for them”: (a) photocopying expenses; (b) the attorney’s telephone expenses; (e) travel time and expenses of the attorney; and (d) postage. See id. (citations omitted). The costs and expenses incurred by counsel, however, are subject to the Court’s determination that they are reasonable and necessary. See id. In addition, the fee applicant has the burden of adequately documenting and itemizing the costs requested. See Hall v. Harleysville Ins., 943 F.Supp. 536, 546 (E.D.Pa.1996); see also L. Civ. R. 54.2(a)(5). Defendants object to Plaintiffs’ request for reimbursement for out-of-pocket expenses on the ground that the expenses are not adequately documented. Plaintiffs’ counsel submit that they itemized their expenses in accordance with L. Civ. R. 54.2(a)(5). They did not. Plaintiffs’ counsel merely set forth their expenses in generalized categories, e.g., Lexis and other computer research, duplicating expenses, meals and fares. Thus, Plaintiffs have not met their burden of adequately documenting that their out-of-pocket expenses were “incurred in order for the attorney to be able to render his or her legal services.” Abrams, 50 F.3d at 1225. A. Court Reporting Services Shapiro & Croland seeks to recover $785 for court reporting services. Court reporting services are recoverable as taxable expenses under 28 U.S.C. § 1920(2). Thus, the Court shall award the full amount requested. B. Computerized Legal Research Gold, Farrell seeks to recover $5,486.31 in LEXIS and other computer research. The use of Lexis [or Westlaw] allows for quicker research and access to the most recent case law, therefore, it allows for more efficient use of an attorney’s time. Furthermore, it is the type of expense that attorneys bill separately to their clients. See Abrams, 50 F.3d at 1225. Thus, fee applicants are generally compensated for reasonable expenses such as costs stemming from computer research. See O’Farrell v. Twin Bros. Meats, Inc., 889 F.Supp. 189, 192 (E.D.Pa.1995); Haroco, Inc. v. American Nat’l Bank & Trust Co." }, { "docid": "9354938", "title": "", "text": "expenses are consistently treated as recoverable as part of ‘attorneys’ fees’ in the broad sense”); Schultz v. Amick, 955 F.Supp. 1087, 1116 (N.D.Iowa 1997) (same); Johnson v. Mortham, 950 F.Supp. 1117, 1126-1127 & n. 11 (N.D.Fla.1996) (reasonable costs and allowable expenses of attorney include “reproduction expenses, telephone expenses of the attorney, travel time and expenses of the attorney, and postage”); Chicago Professional Sports Ltd. Partnership v. National Basketball Ass’n, 1992 WL 584077 at * 3 (N.D.Ill. Dec. 21, 1992) (out-of-pocket expenses may include “telecopy charges”); cf. Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1200 (9th Cir.2002) (recoverable costs under Title VII may include deposition costs), cert. denied, — U.S. -, 123 S.Ct. 854, 154 L.Ed.2d 781 (2003), (citing Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.1994)). With regard to the expenses incurred by Baker’s counsel’s firm, there are certain expenses to which John Morrell does not object and which are recoverable as costs under 28 U.S.C. § 1920 and as allowable expenses under 42 U.S.C. § 1988. There are, however, other charges that are not allowable, and the court will deduct them even though John Morrell did not object. Specifically, the court will deduct plaintiffs charges for “parking fees” because all of the charges were incurred as a result of parking tickets received during trial or were inadequately documented. These tickets total $75.00, and the inadequately documented charge for “mints and parking” totals $4.00. These fees will not be taxed to John Morrell. Having reviewed the other expenses claimed by Baker’s attorneys, the court finds that the amounts charged are reasonable. Turning to the objected-to costs sought by Baker, the court finds that they are properly compensable as part of a reasonable attorney’s fee. First, John Morrell objects to plaintiffs request to recover expert witness costs for the preparation and trial testimony of her treating physicians, Dr. Muller and Dr. Jennings. In John Morrell’s opinion, Dr. Muller and Dr. Jennings testified as fact witnesses as Baker’s treating physicians, and, therefore, Baker is entitled only to recoup the $40 statutory witness fee provided for under 28 U.S.C. § 1821. Plaintiff" }, { "docid": "10247445", "title": "", "text": "42 U.S.C. § 1988 An attorney’s fee under § 1988 includes those expenses that are incurred in order for the attorney to render his or her legal services and that would normally be charged to a fee-paying client. See. e.g., id.; Abrams v. Lightolier, 50 F.3d 1204, 1225 (3d Cir.1995); Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.1994); Associated Builders & Contractors v. Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir.1990); Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir.1983). Thus, “reasonable expenses, though greater than taxable costs, may be proper.” Harris, 24 F.3d at 20. Routine expenses which are incorporated into attorneys’ rates as routine office overhead are not recoverable, however. See, e.g., Abrams, 50 F.3d at 1225; Kuzma v. IRS, 821 F.2d 930, 933-34 (2d Cir.1987); Knop, 712 F.Supp. at 588. Computerized Research Although the cost of computerized research is not recoverable under § 1920, this Court finds that it is properly considered as part of an attorney’s fee under § 1988. See, e.g., United States v. Merritt Meridian Const. Corp., 95 F.3d 153, 173 (2d Cir.1996); Haroco, Inc. v. American Nat'l Bank & Trust Co. of Chicago, 38 F.3d 1429, 1440-41 (7th Cir.1994); In the Matter of Continental Illinois Secs. Litig., 962 F.2d 566, 570 (7th Cir.1992); Gregory v. Weigler, 873 F.Supp. 1189, 1199 (C.D.Ill.1995); Aloha Tower Associates Piers 7, 8, and 9, Ltd. Partnership v. Millennium Aloha, Inc., 938 F.Supp. 646, 649 (D.Hawaii 1996); Hurley v. Atlantic City Police Dep't, 1996 WL 549298, *3 (D.N.J.); Brown v. Pro Football. Inc., 839 F.Supp. 905, 916 (D.D.C.1993), modified on other grounds, 846 F.Supp. 108 (D.D.C.1994). This Court agrees with the reasoning of the Seventh Circuit in Haroco: The added cost of computerized research is normally matched with a corresponding reduction in the amount of time an attorney must spend researching. Therefore, we see no difference between a situation where an attorney researches manually and bills only the time spent and a situation where the attorney does the research on a computer and bills for both the time and the computer fee. In both cases the" }, { "docid": "5434672", "title": "", "text": "Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit. Missouri v. Jenkins, 491 U.S. 274, 285, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). A reasonable attorneys fee should be “consistent with market rates and practices” in the community. Id. at 287, 109 S.Ct. 2463. Such a fee, of course, must include “reasonable out-of-pocket expenses of the kind normally charged to clients by attorneys.” Pinkham, 84 F.3d at 294-95 (characterizing the inclusion of charges for long distance telephone calls, facsimile transmissions, messenger services, and express mail as taxable costs under § 1920(4) as harmless error “because such costs were reasonable out-of-pocket expenses of the kind normally charged to clients by, attorneys, and thus should have been included as part of the reasonable attorneys fees awarded”) (citing WVUH, 499 U.S. at 87 n. 3, 111 S.Ct. 1138); Neufeld v. Searle Laboratories, 884 F.2d 335, 342 (8th Cir.1989). (holding that district court abused its discretion in refusing to include in its attorney’s fees award the deposition-related travel expenses incurred by prevailing plaintiffs counsel in an ADEA case). Thus, even though plaintiffs improperly included in their bill of costs certain out-of-pocket expenses not taxable as costs, those expenses may in fact be recoverable as part of their reasonable attorneys fees. With these general principles in mind, the Court will examine plaintiffs’ claims and defendants’ objections. II. Costs and Out-of-Pocket Expenses A. Photocopying expenses Plaintiffs’ bill of costs lists $29,-449.93 in photocopy expenses, which plaintiffs claim as “fees for exemplification and copies of papers necessarily obtained for use in the case,” under § 1920(4). The Court agrees with defendants that plaintiffs have failed to show what, if any, of these photocopy expenses are properly taxable. Under subsection (4) of § 1920, plaintiffs could have legitimately listed amounts they paid to others for production of documents, or could have charged their own photocopy expenses for copying the numerous" }, { "docid": "9354937", "title": "", "text": "title ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.... ” Some “costs” that are not available under 28 U.S.C. § 1920 are recoverable as “reasonable out-of-pocket expenses of the kind normally charged to clients by attorneys, and thus should [be] included as part of the reasonable attorney’s fees awarded” under 42 U.S.C. § 1988. Pinkham v. Camex, Inc., 84 F.3d 292, 294-95 (8th Cir.1996) (per curiam) (citations omitted); accord Martin v. City of Indianapolis, 28 F.Supp.2d 1098, 1107 (S.D.Ind.1998) (“[S]ome of the costs listed by [plaintiffs] counsel, including travel expenses, long-distance telephone calls, photocopying services and express mail charges, are more properly labeled ‘litigation expenses,’ which generally are com-pensable as part of a reasonable attorney’s fee, rather than costs.”), aff'd, 192 F.3d 608 (7th Cir.1999) (citing Pinkham, 84 F.3d at 294-95); Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1144 (7th Cir.1994); Bennett v. Central Telephone Co. of Illinois, 619 F.Supp. 640, 643 n. 1 (N.D.Ill.1985) (“Such expenses are consistently treated as recoverable as part of ‘attorneys’ fees’ in the broad sense”); Schultz v. Amick, 955 F.Supp. 1087, 1116 (N.D.Iowa 1997) (same); Johnson v. Mortham, 950 F.Supp. 1117, 1126-1127 & n. 11 (N.D.Fla.1996) (reasonable costs and allowable expenses of attorney include “reproduction expenses, telephone expenses of the attorney, travel time and expenses of the attorney, and postage”); Chicago Professional Sports Ltd. Partnership v. National Basketball Ass’n, 1992 WL 584077 at * 3 (N.D.Ill. Dec. 21, 1992) (out-of-pocket expenses may include “telecopy charges”); cf. Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1200 (9th Cir.2002) (recoverable costs under Title VII may include deposition costs), cert. denied, — U.S. -, 123 S.Ct. 854, 154 L.Ed.2d 781 (2003), (citing Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.1994)). With regard to the expenses incurred by Baker’s counsel’s firm, there are certain expenses to which John Morrell does not object and which are recoverable as costs under 28 U.S.C. § 1920 and as allowable expenses under 42 U.S.C. § 1988. There are, however, other charges that are" }, { "docid": "10247447", "title": "", "text": "■total costs are attorney’s fees____ Haroco, 38 F.3d at 1440-41. CABOR’s request for reimbursement of expenses for computerized legal research is reasonable and adequately documented. Furthermore, it is supported by an affidavit stating that the expenses, which were indeed billed to CABOR, are of the type normally billed separately to clients. See Second Supp. Aff. of D. Hammer. Therefore, this Court, following other courts allowing prevailing parties to be reimbursed under § 1988 for computer research fees, awards CABOR $8,429.86 in expenses for computerized legal research. Photocopying and communication charges CABOR requests $10,473.64 for photocopying expenses, and $1,012.57 for “communication charges,” including expenses incurred for fax transmittals, messenger services, postage and telephone use. It is clear that such expenses, if reasonable, are recoverable under § 1988, see, e.g., Northcross, 611 F.2d at 639, and Euclid does not contend otherwise. Rather, Euclid argues that these expenses should be disallowed because they are not properly documented. Contrary to Euclid’s contention, CABOR has adequately documented these expenses with individual receipts and billing records. These charges were actually incurred, and are of the type normally charged separately to clients. See Second Supp. Aff. of D. Hammer. Furthermore, this Court finds the expenses requested to be entirely reasonable given the nature and history of this litigation. Therefore, the Court awards expenses related to photocopying and communication in full. Clerical Overtime CABOR requests reimbursement for payments made for clerical overtime ($3,216.37). This Court considers these expenses to be part of firm overhead, and thus, they are not recoverable. There is no evidence that it is the prevailing practice in the Cleveland area to bill the client separately for such expenses, nor is there any evidence that the rates at issue are on par with market rates. See Second Supp. Aff. of D. Hammer. Accordingly, expenses for clerical overtime are disallowed. Other expenses CABOR also seeks $4,691.86 for “costs and disbursements on appeal.” This figure includes the same type of expenses incurred at the trial level and discussed above, such as postage, travel, computerized research, communication and photocopies. Although Euclid objects again on grounds of insufficient documentation," } ]

[ { "docid": "22181456", "title": "", "text": "Pacific Ry. v. Cox, 145 U. S. 593, 603-604; Atlantic and Pacific R. R. v. Laird, 164 U. S. 393; Hutchinson v. Otis, 190 U. S. 552, 555; Missouri, Kansas & Texas Ry. v. Wulf, 226 U. S. 570, 576; Crotty v. Chicago Great Western Ry., 95 C. C. A. 91; S. C., 169 Fed. Rep. 593. But if it introduced a new or different cause of action, it was the equivalent of a new suit, as to which the running of the limitation was not theretofore arrested. Sicard v. Davis, 6 Pet. 124, 140; Union Pacific Ry. v. Wyler, 158 U. S. 285; United States v. Dalcour, 203 U. S. 408, 423. The original complaint set forth that the defendant was operating a line of railroad in Virginia, North Carolina and elsewhere, that the plaintiff was in its employ, that when he was injured he was in the line of duty and was proceeding to get aboard one of the defendant’s trains, and that the injury was sustained at Cochran, Virginia, through the defendant’s negligence in permitting a part of its right of way at that place to get and remain in a dangerous condition. Of course, the right of action could not arise under the laws of North Carolina when the causal negligence and'the injury occurred in'Virginia; and the absence of any mention of the laws of the latter State was at least consistent with their inapplicability. Besides, the allegation that the defendant was operating a railroad in States other than Virginia was superfluous if the right of action arose under the laws of that State, and was pertinent only if it arose in interstate commerce, and therefore under thé act of Congress. In these circumstances, while the question is not free from difficulty, we cannot say that the court erred in treating the original complaint as pointing, although only imperfectly, to a cause of action under the law of Congress. And this being so, it- must be taken that the amendment .merely expanded or amplified what was alleged in support -of that cause of action and related" } ]

[ { "docid": "6888300", "title": "", "text": "(1948). Defendant PEPCO, while not conceding that their alleged negligence was the direct and proximate cause of the accident, argues that if Plaintiff lived after the accident, it was for a short time. Plaintiffs’ medical expert, as stated earlier in this Memorandum Opinion, stated in his deposition that the deceased could have reasonably lived for four to six minutes before he died. Furthermore, there is the testimony of Mr. Ward who saw the decedent immediately after the accident and stated in his deposition that Mr. Green’s eyes were open, and they appeared to be looking at him. Furthermore, Ward stated that he saw Green’s hand moving. Sufficient evidence has been presented to this Court that would allow a trier of fact to reasonable find that Green did not die instantaneously and that he suffered for the brief time before he died. Defendant’s argument that four to six minutes is too brief a time to recover pain and suffering is without merit. The Court in Tri-State, held that recovery may be had although the period between accident and death is short. Tri-State at 125, 57 A.2d 812. It will be up to the trier of fact to determine whether Green was conscious at all after the accident and how much did he suffer. Accordingly, the Court will deny Defendant PEPCO’s Motion for Partial Summary Judgment on Damages Resulting from Conscious Pain and Suffering. VII Third Party Defendants Salkeld and Willard Packaging Company’s Motion for Summary Judgment. Defendant PEPCO has filed a third party action against Salkeld and Willard Packaging Company alleging that the third party Defendants owed a duty to PEPCO to inspect and maintain the property and the utility pole and to warn PEPCO of any dangerous condition. Third party Defendants have been brought into this action, in essence, to contribute to PEPCO if they are found liable to Plaintiff Green. Plaintiffs have not brought a direct claim against Salkeld and Willard Packaging Company. The Court will grant third party Defendants Salkeld and Willard Packaging Company’s Motion for Summary Judgment. PEPCO contends that third party Defendants owed them a duty" }, { "docid": "6888298", "title": "", "text": "owner of a right of way easement on real property, owes a trespasser the duty to “refrain from willfully or wantonly injuring or entrapping the person ‘once his presence is known.’ ” Mech v. Hearst Corp., 64 Md.App. 422, 426, 496 A.2d 1099 (1985). Without deciding the merits of whether Green was a trespasser or was owed a higher duty, this Court believes that evidence has been presented by Plaintiffs for a trier of fact to reasonably decide that PEPCO’s actions were willful and wanton. PEPCO’s inspector was told that the utility pole was swaying after the guy wire had snapped. Furthermore, they were told that the three 500 pound transformers atop the pole had separated from the pole. PEP-CO was also told that trucks passed by the pole on a regular basis and a picnic area was in plain view of the utility pole area. There is certainly enough evidence present in the case to show that PEPCO should have known that the utility pole was dangerous and that there was vehicular and pedestrian traffic in the area. A trier of fact could reasonably determine that PEP-CO could have anticipated a 500 pound transformer dropping in an area where people may be. PEPCO’s Motion for Summary Judgment will be denied by this Court because a trier of fact could reasonably determine that PEPCO owed Plaintiffs a duty, and they breached that duty. VI Defendant PEPCO’s Motion for Partial Summary Judgment on Damages Resulting from Conscious Pain and Suffering Plaintiffs seek to recover conscious pain and suffering damages under their survival action claims. In Maryland, plaintiffs can recover pain and suffering damages endured by the deceased, between the time of injury and the time of death. Beynon v. Montgomery Cablevision Limited Partnership, 351 Md. 460, 475, 718 A.2d 1161 (1998). In order to recover for conscious pain and suffering, the defendant’s negligence must be the direct and proximate cause of the accident, the victim must have lived after the accident, and the victim must have suffered conscious pain. Tri-State Poultry Cooperative v. Carey, 190 Md. 116, 125, 57 A.2d 812" }, { "docid": "22140663", "title": "", "text": "enforced by the Federal courts. In order to determine the validity and effect of restrictions upon liability contained in such bills, it is important, if not indeed essential, to consider the applicable schedules on file with the Commission. Adams Express Co. v. Croninger, 226 U. S. 491; C., B. & Q. Ry. v. Miller, 226 U. S. 513; C., St. P., M. & O. Ry. v. Latta, 226 U. S. 519; Wells, Fargo & Co. v. Neiman-Marcus Co., 227 U. S. 469; Kansas Southern Ry. v. Carl, 227 U. S. 639; Mo., Kans. & Tex. Ry. v. Harriman, 227 U. S. 657; Chicago, R. I. & Pac. Ry. v. Cramer, 232 U. S. 490; Boston & Maine R. R. v. Hooker, 233 U. S. 97; Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278; N. Y. & Norfolk R. R. v. Peninsula Exchange, 240 U. S. 34. It was plain error to exclude the rate schedules. Having been requested in apt time, the trial court refused to charge the jury as follows: “As the shipment which is alleged to have been delayed was a shipment in interstate commerce, and as the damage claimed by the plaintiff is damage for mental suffering only on account of the delay of the delivery of said shipment; the court instructs the jury that under the evidence in this case the plaintiff is not entitleckto recover any such damage; the jury is therefore directed to render, a verdict for the defendant.” This instruction should have been given. The action is based upon a claim for mental suffering only — nothing else was set up and the proof discloses no other injury for which compensation had not been made. In such circumstances as those presented here, the long-recognized common law rule permitted no recovery; the decisions to this effect “rest upon the elementary principle that mere mental pain and anxiety are too vague for legal redress where no injury is done to person, property, health or reputation.” Cooley on Torts, 3d Ed., page 94. The lower -Federal courts, almost without exception, have adhered to" }, { "docid": "18040473", "title": "", "text": "that such a light conveys to the motorist a meaning much different from that conveyed by a yellow light similarly placed. But, even were we to adopt this rather tenuous construction, we find nothing in the language of the statute which indicates that the legislature intended to extend the contractor’s common law duty so far as to require him to warn against a dangerous condition created by another on property over which he had no control. The plaintiffs have argued that “it suffices for us to show that there is at least one good charge of negligence, a charge of proximate cause, and a charge of damages.” To this must necessarily be added that the charge of proximate cause must show a cause and result relation between that “one good charge of negligence” and the damages sustained by plaintiffs. Baltimore & O. S. W. R. Co. v. Burtch, 192 Ind. 199, 134 N.E. 858; Indianapolis Abattoir Co. v. Neidlinger, 174 Ind. 400, 92 N.E. 169. In this case, then, where the defendant’s only duty was to warn the plaintiffs of any dangerous conditions which had been created by it, and where the plaintiffs’ injuries resulted from the collision of the bus in which they were riding, with the trolley pole of the Gary Railways Company some distance away, on premises for which defendant was nowise responsible, it was incumbent upon the plaintiffs to show that defendant’s violation of the Indiana statute bore a causal relationship to the injuries sustained by them. The allegations of the complaint not only fail to do this but expressly negative the existence of any such relationship. Paragraph 20 of the complaint alleges: “That by reason of said pole being unpainted as aforesaid, unlighted, as aforesaid, and without any red lights or any -warning devices on it whatsoever, as aforesaid, or without any warning signs or red lights warning him of danger ahead, as aforesaid, the driver of said bus was unable to see said pole or know of its presence or of the danger ahead in time to avoid hitting said pole and the dangers" }, { "docid": "12014514", "title": "", "text": "the interrogatories and the court’s instructions, that the jury’s verdict is based solely upon the negligence of the appellee railroad in moving its second train past the deceased after he was injured. In presenting its motion for a directed verdict, the appellee contended, and the trial court was apparently of the view, that the jury’s verdict should be set aside on the grounds that there was insufficient evidence to show a proximate causal connection between the death of the decedent and the moving of the second train. The attending physician who testified on trial concerning the extent of decedent’s injuries and the cause of death was unable to say with any degree of certainty or probability that the negligent passing of the second train contributed to his death. It may be conceded, therefore, that under Cohenour v. Smart, Okl., 240 P.2d 91, the evidence is insufficient to support an award of damages for the alleged wrongful death of the decedent. See also Annotation in 134 A.L.R. 516. But, the damages awarded were not for the wrongful death of the decedent. Indeed by its verdict the jury necessarily found that death did not result from the second negligent act. The verdict was expressly limited to damages for “pain and suffering,” a compensable wrong, separate and distinct from the claim for wrongful death. See Deep Rock Oil Corporation v. Sheridan, 10 Cir., 173 F.2d 186; Baltimore Am. Ins. Company v. Cannon, 181 Okl. 244, 73 P.2d 167; St. Louis & S. F. Ry. Co. v. Goode, 42 Okl. 784, 142 P. 1185, L.R.A. 1915E, 1141. The second train was moved past the decedent over the strenuous objections of relatives and friends, and in disobedience of a call from the appellee’s dispatcher “to hold that train until the boy’s body was removed from that bridge.” When the second train started by the decedent he was lying immediately adjacent to the track seriously injured, but fully conscious. The passing of the train over the trestle or bridge caused considerable noise and vibration. The brother of the deceased stood at his head with one leg" }, { "docid": "4521540", "title": "", "text": "the record that could bear upon the condition of the pin-lifter is the testimony of the witness Stogner, especially that found upon pages 29, 31, 34, 36 and 40 of the • transcript. The Supreme Court has held that the statute must be liberally construed so as to give a right of recovery for every injury the proximate cause of which was failure to comply with the Act. The jury may not be permitted to speculate as to the cause of the injury, and “the case must be withdrawn from its consideration, unless there is evidence from which the inference may reasonably be drawn that the injury suffered was caused by the negligent act of the employer”. Atchison, Topeka & Santa Fe Ry. Co. v. Toops, 281 U.S. 351, 354, 355, 50 S.Ct. 281, 282, 74 L.Ed. 896. We are asked to declare that, on the record before us, the motions of appellant for a directed verdict and for a verdict in its favor non obstante veredicto should have been sustained; but in view of that record we cannot say that the inference might not reasonably have been drawn by the triers of the fact that there was probable cause to believe that the injury suffered was caused by the breach of duty charged. As hereafter shown the court’s charge, to which exception is urged, was erroneous, and necessarily potentially prejudicial. 2. The main contention of appellant that the tidal court erred in refusing to recognize the order and judgment of the Probate Court of St. Clair County, Illinois, is based upon the insistence that the action of the wife of the deceased to recover for the death of her husband, especially his pain and suffering, was an asset of decedent’s estate of which the Probate Court had jurisdiction; and that its orders and judgments cannot be attacked collaterally in the federal trial court. The argument of appellee that the Probate Court had no jurisdiction over the claim of appellant is based upon the consideration that, “Where, as here, the death action is one under the Federal Employers’ Liability Act" }, { "docid": "22045878", "title": "", "text": "took the plow off and was putting the overhead current on, she heard him groan.” And she saw him “twist his hands when he got the shock.” The declaration does not charge a defect in the leads. It charges the negligence to have been in the failure “to keep, or cause to be kept, cut off ” the electric current while the deceased was in the pit, “whereby and by reason of-said negligence the said intestate was- so severely shocked and injured by said electric current that he almost immediately died.” In other words,' the cause, of death was the negligent act of permitting the trolley pole to come in contact with the trolley wire. ■ But, granting plaintiff is not limited by her declaration, nevertheless she has not satisfied the requirements of law in her proof. A plaintiff in the first instance must show negli gence on the part of the defendant. Having done this; he need not go farther in those jurisdictions where the burden -of proof is on the defendant to show contributory negligence. In other words, if there is no evidence which speaks one way or the other with reference to contributory negligence of the person killed, then it is presumed that there was no such negligence. Thompson on the Law of Negligence, sec, 401; Baltimore & Potomac R. R. Company v. Landrigan, 191 U. S. 461; Texas & Pacific Railway Company v. Gentry, 163 U. S. 353. But the negligence of a defendant cannot be inferred from ,a presumption of care on the part of the person killed. A presumption in the performance of duty attends the defendant as well as the person killed. It must be overcome by direct evidence. One presumption cannot be built upon another. Douglas v. Mitchell, 35 Pa. St. 440; Philadelphia &c. Railway Company v. Henrice, 92 Pa. St. 431; Yarnell v. Kansas City &c. Railroad Company, 113 Missouri, 570. Judgment affirmed." }, { "docid": "12801986", "title": "", "text": "Max Kelley had ascended a telephone pole and was in the process of removing the crossarm when the pole fell, pinning him beneath it. He suffered serious injuries to his right leg and ankle, as well as his back. The reason the pole fell with Kelley is that it was rotted through four to six inches below ground level. For this reason it would not support Kelley’s weight once the wires connecting the pole to other poles in the line had been removed. Kelley filed this diversity action against General Telephone asserting various theories on which General was liable in tort for his injuries. General filed a third party action against Kelley’s employer, Clark Enterprises, seeking recovery on the basis of an indemnity clause in the construction contract between General and Clark. This action was severed from the tort suit and tried to the court. Kelley’s action against General went to the jury on the court’s general charge, and the jury returned a verdict in favor of plaintiff. In answer to special interrogatories submitted by the court, the jury said that its verdict was founded on defendant’s negligence in failing to inspect the defective pole prior to the work and also in failing to warn plaintiff of the defective condition of the pole. The jury necessarily rejected defendant’s defensive theories which were submitted in the court’s charge. These were that defendant was not negligent, that plaintiff was contributorily negligent, that the sole proximate cause of the accident was the conduct of the independent contractor, Clark, and that the accident was unavoidable. The district court entered judgment on the jury’s verdict and General appealed. Clark has appealed from the trial court’s entry of summary judgment in favor of General in the third party action. II. The duties owed in Texas by an occupier of premises to an invitee are well established. In Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 454 (Tex. 1972), the Texas Supreme Court said: “ * * * The duty is that which is summarized in Restatement (Second) of Torts § 343 (1965) : § 343. Dangerous" }, { "docid": "22804001", "title": "", "text": "curve and cut through which the grain cars passed in order to reach the elevator track, it was impossible for the engineer or the two brakemen to see deceased or his lantern at the point where his body was found. There was evidence that no warning signal by bell or whistle was given in the course of the kicking movement. It is the theory of the respondent, conforming to the findings of the jury in its special verdict, that deceased, while crossing the track near the derail, where, according to some of the testimony the roadbed was overgrown with weeds and so thinly ballasted that the track had become “ skeletonized,” was knocked down by the leading grain car and killed by that and the succeeding cars passing over him, and that his death was attributable to negligence in carrying out the kicking movement of the grain cars without signal and without placing a flagman or a light on them. But proof of negligence alone does not entitle the plaintiff to recover under the Federal Employers’ Liability Act. The negligence complained of must be the cause of the injury. The jury may not be permitted to speculate as to its cause and the case must be withdrawn from its consideration unless there is evidence from which the inference may reasonably be drawn that the injury suffered was caused by the negligent act of the employer. Patton v. Texas & Pac. Ry. Co., 179 U. S. 658; New Orleans & N. E. R. R. Co. v. Harris, 247 U. S. 367, 371; St. Louis & San Francisco Ry. Co. v. Mills, 271 U. S. 344, 347; C. M. & St. P. Ry. v. Coogan, 271 U. S. 472; New York Central Railroad Co. v. Ambrose, 280 U. S. 486. Even though we assume that in all the respects alleged the petitioner was negligent, the record does not disclose any facts tending to show that the negligence was the cause of the injury and death. The only evidence relied upon by respondent to account for the deceased’s presence at the point of" }, { "docid": "13376608", "title": "", "text": "appointment was valid. As to the question of collusion, the District Court rightly overruled the motion. Appellee was regularly appointed administrator of the estate in Michigan. The motive that actuated these parties in procuring a lawful and valid appointment is immaterial upon the question ,of identity or diversity of citizenship. Me-com, Adm’r, v. Fitzsimmons Drilling Co., Inc., 284 U. S. 183, 189, 52 S.Ct. 84, 76 L. Eld. 233. See, also, City of Detroit v. Blanchfield, 13 F.(2d) 13, 47 A.L.R. 314 (C.C.A.6). As to the third question, the original declaration stated a cause of action. While the Ontario statutes were not sufficiently pleaded, they were not only identified by reference, but their substance was stated in the allegations of negligence. The declaration was imperfectly drawn, but it contained averments sufficient to show that the claim asserted was based on the statutes creating the right of action, and was brought by the proper party plaintiff. This being so, it could be amended, and the amendment would relate back to the date of the institution of the action. The District Court did not abuse its discretion in permitting the amendment. Mexican Central Ry. Co. v. Pinkney, 149 U.S. 194, 201, 13 S.Ct. 859, 37 L.Ed. 699. The amended declaration in no way changed the substance of the controversy. It is true that paragraph 14 thereof set out the provisions of a statute not theretofore pleaded or referred to, namely, chapter 27 Gf the Statutes of Ontario, 1930, whereby the comparative negligence rule is established for that province in personal injury cases. Elowever, the cause of action was the same. It arose out of the same accident which resulted in the same death. Cf. Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593, 603, 12 S.Ct. 905, 36 L.Ed. 829; Atlantic & Pacific R. Co. v. Laird, 164 U. S. 393, 402, 17 S.Ct. 120, 41 L.Ed. 485. The same evidence was required to establish the material allegations of both the original and the amended declaration. As in Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U.S. 570, 576," }, { "docid": "23688460", "title": "", "text": "the headlight was burning he could see objects on the track clearly at a distance of twenty-five or thirty yards, and that he could stop his car in about thirteen feet. Continuing on from the switch, as we have said, the motor car suddenly ran upon something, was stopped, and it was found that Myers had been run over. He was lying in the middle of the track with his head toward the motor and his cap, upright, with the light still burning, was lying beside the track. Myers’ body was badly torn and mangled before the motor car could be stopped. His tongue was found to be moving, but he shortly died from his injuries. It was also shown that Myers was a man of unusual strength and vigor, twenty-nine years of age, and to all appearances in full health and strength shortly before the injury. The trial court submitted the case to the jury to determine whether the defendant had failed to discharge its .duty of using reasonable care to provide a proper and safe place for Myers to work, that is, in failing to provide adequate lights at a dangerous place and permitting the motor car to be operated without the headlight, and also in permitting an exposed live trolley wire to cross the main track at insufficient elevation. An inspection of the record satisfies us that there was testimony enough in the case to carry these questions to the jury under the instructions which weré given. The duty of the master to use reasonable diligence to provide a safe place for the employés to work, to carry on the occupation in which they are employed, is too well settled to require much consideration now. This duty is a continuing one and discharged only when the master provides and maintains a place of that character. Baltimore & Potomac R. R. Co. v. Mackey, 157 U. S. 72, 87; Union Pacific Ry. Co. v. O’Brien, 161 U. S. 451; Choctaw, Oklahoma &c. R. R. Co. v. McDade, 191 U. S. 64; Kreigh v. Westinghouse & Co., 214 U." }, { "docid": "6888306", "title": "", "text": "Corp. v. Crane Barge R 14, 632 F.2d 1123 (4th Cir.1980). Defendant PEPCO has not offered this Court any evidence of duty that Salkeld and Willard owed Mr. Green and Plaintiffs have not included the third party Defendants in their complaint. CONCLUSION For the foregoing reasons the Court will deny Defendant PEPCO’s Motion for Summary Judgment on the Issue of Contributory Negligence. The trier of fact could reasonable decide that Mr. Green had a heart attack while he was driving the truck. If that is the case, then there can be no contributory negligence on the part of the deceased. The Court will grant Defendant Reilly’s Motion for Summary Judgment on the issue of the Statute of Repose. The utility pole is an “improvement to real property” under Maryland case law and the pole has been on the land for 28 years. Additionally, the Court will grant Defendant Asplundh’s Motion for Summary Judgment as to counts I, II, III and IV. Plaintiffs have failed to make out a case of negligence and gross negligence against Asplundh because they have not shown that Asplundh’s actions were the proximate cause of Green’s death. Defendant PEPCO’s Motion for Summary Judgment on the Absence of Duty or Breach of any Duty will be denied by this Court, along with their Motion for Partial Summary Judgment on Damages Resulting from Conscious Pain and Suffering. A trier of fact could reasonably determine that PEPCO owed a duty to Green and breached that duty. Furthermore, Maryland courts recognize damages resulting from conscious pain and suffering. Plaintiffs have submitted sufficient evidence to bring that question before the trier of fact. As for third party Defendant Salkeld and Willard Packaging Company’s Motion for Summary Judgment, the Court will grant the motion. Willard did not owe a duty to PEPCO as a business invitee. Defendant Asplundh’s Motion to Bifurcate and Motion to Exclude the Expert Testimony of Wallace 0. Faison are moot as they have been dismissed as a party pursuant to the Court’s granting of their Motion for Summary Judgment. The Court will also, sua sponte, dismiss: (1) Defendant" }, { "docid": "14173301", "title": "", "text": "prior to the expiration of one year from the completion of the contract and “settlement” ; (5) that plaintiff was still the owner of the claim. Ill. Surety Co. v. Peeler, 240 U. S. 214, 225, 36 Sup. Ct. 321, 60 L. Ed. 609. It is clear, therefore, that evidence was needed to support tire cause of action set up in the amendment different from and in addition to what was needed to support the cause of action set up either in the original petition or in the original petition as first amended. The first test above mentioned has therefore not been met. Applying the second test: If plaintiff had gone to trial upon the original petition, or upon the original petition as first amended, and hád obtained judgment in whatsoever amount it could have shown itself entitled by reason of itself furnishing stone to the contractor, it is plain that such judgment would not have been a bar to a recovery by plaintiff for other stone furnished by the Perry Company, the claim for which had been assigned to plaintiff; and the reverse is also clearly true, that the recovery on the latter claim would have been no bar to recovery on the former. The second test was therefore, not met. Furthermore, the amendment of November, 1916, was not a mere amplification or expansion of what was stated in the original petition, and therefore within the scope of the decisions. Railway v. Wulf, 226 U. S. 570, 576, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134; Seaboard Air Line v. Renn, 241 U. S. 290, 36 Sup. Ct. 567, 60 L. Ed. 1006; Friederichsen v. Renard, 247 U. S. 207, 38 Sup. Ct. 450, 62 L. Ed. 1075; Ill. Surety Co. v. Peeler, 240 U. S. 214, 36 Sup. Ct. 321, 60 L. Ed. 609; Railway v. Scala, 244 U. S. 630, 37 Sup. Ct. 654, 61 L. Ed. 1360. But the amendment set forth a new and different state of facts which constituted a different cause of action, and came within the scope of" }, { "docid": "22179153", "title": "", "text": "the trial court, made a fatal choice of an inconsistent remedy, would be to subordinate substance to form of procedure, with the result of defeating a claim which the respondents stipulated had been sufficiently established to justify a verdict against them. This we cannot consent to do. The questions of procedure being thus cleared away, there is little further difficulty with the case. As we have seen, the “amended petition” was not filed in a new case but was simply a-step forward in progress toward settlement of the original controversy; the allegations of fact are precisely the same in substance, and almost the same in form, as they were in the original bill and therefore looking to substance and realities, they cannot be regarded as stating a new cause of action. The case falls clearly within the scope of the principle of the decisions of this court in Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593-604; Atlantic & Pacific R. R. Co. v. Laird, 164 U. S. 393, 401; Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U. S. 570; Seaboard Air Line Ry. v. Renn, 241 U. S. 290; Washington Ry. & Elec. Co. v. Scala, 244 U. S. 630, 640. The decision in Union Pacific Ry. Co. v. Wyler, 158 U. S. 285, is so clearly distinguished in the Wulf Case, supra, from the principle of these decisions that additional comment would be superfluous. It results that the judgments of the Circuit Court of Appeals and of the District Court must be reversed and the cause remanded to the latter jfor further proceedings in conformity with this opinion. Reversed." }, { "docid": "22076031", "title": "", "text": "Mr. Justice Black delivered the opinion of the Court. Petitioner’s husband was killed while in the performance of his duties as an employee of respondent railroad. She filed suit under the Federal Employers Liability Act, 45 U. S. C. § 51 et seq., alleging that her husband’s death was caused by the negligent operation of a railroad car which struck and killed him, and because of respondent’s failure to provide him a reasonably safe place to work. The District Court directed a verdict in favor of the railroad and the Circuit Court of Appeals affirmed. 128 F. 2d 420. We reversed, holding that there was sufficient evidence of the railroad’s negligence to require submission of the case to the jury. Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 68, 73. On remand, petitioner amended her complaint in the District Court, over respondent’s objection, by charging that, in addition to the negligence previously alleged, the decedent’s death was caused by the railroad’s violation of the Federal Boiler Inspection Act, 45 U. S. C. § 22 et seq., and Rules and Regulations prescribed by the Interstate Commerce Commission pursuant to the provi sions of that Act. The jury returned a verdict in favor of petitioner, and the District Court refused to set it aside. The Circuit Court of Appeals reversed, 142 F. 2d 718, and certiorari was granted because of the importance of questions involved relating to the administration and enforcement of the Federal Employers Liability Act and the Federal Boiler Inspection Act. Here, as in the Circuit Court of Appeals, respondent has again argued that the evidence of negligence charged in the original complaint was insufficient to justify submission of the case to the jury. Slight variations in the evidence presented at the two trials are said to require a different conclusion than that which we reached on the first review of this case. As to’ this contention of respondent, the Circuit Court of Appeals said on the second appeal that “Since the evidence at the second trial in respect to the movement of the cars was substantially" }, { "docid": "17834285", "title": "", "text": "subject matter of the controversy.” (Emphasis supplied). The Supreme Court of the United States spoke authoritatively on the subject in Missouri, Kansas and Texas Railway Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, an action under the Federal Employers’ Liability Act of 1908 which required the action to be brought in the name of the personal representative of the deceased. Aside from being an action under the Federal Employers’ Liability Act, which we do not regard as having any controlling significance so far as the instant question is concerned, Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, presented the same problem on an almost identical state of facts. The action was commenced by the mother in her individual capacity on January 23, 1909, to recover for the death of her son, which occurred on November 27, 1908. On January 6, 1911, plaintiff filed her amended petition, alleging that on January 4, 1911, she was appointed temporary administratrix of her son’s estate with full power and authority to prosecute the suit as party plaintiff. The amendment was allowed, she recovered, and on appeal it was contended that the amended petition filed after the statutory period of limitations of two years, and which for the first time set up a right to sue as administratrix, alleged an entirely new and distinct cause of action, and that such amendment could not relate back to commencement of the action. In ruling adversely to this contention, the court stated, 226 U.S. at p. 575, 33 S.Ct. at p. 137: “It seems to us, however, that, aside from the capacity in which the plaintiff assumed to bring her action, there is no substantial difference between the original and amended petitions. In the former, as in the latter, it was sufficiently averred that the deceased came to his death through injuries suffered while he was employed by the defendant railroad company in interstate commerce; that his death resulted from the negligence of the company and by reasons of defects in one of its locomotive engines due to its negligence; and" }, { "docid": "23490199", "title": "", "text": "sir.” Though Venske’s testimony was indefinite on this important point, we think the evidence was sufficient to take the case to the jury, and that the inference that Venske did pass within 5 to 7 feet of the board on the track was permissible. O’Day and Harrington each testified that it was the duty of all members of the crew to watch the surroundings and to keep a lookout at all times for debris and obstructions along the track. It was therefore a permissible conclusion that Venske’s failure to notice the obstruction on the track constituted negligence which proximately caused the injuries to decedent. The inference is also permissible that Venske did precede the cars down north J track to the crossing. On another trial the evidence might show that Venske did not in fact walk a course near the north J track or that he did not precede the cars down the track, but on this appeal we may only consider the record before us. An appellate court may not reweigh the evidence and set aside the verdict because the judges would draw different inferences and conclusions than the jury drew, or because they think that another result would be more ' reasonable. Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520. “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.” Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916. Defendant insists that the award of $80,000 was excessive, and we agree. Providing plaintiff is entitled to recover, it is for such damages as would justly compensate her and the surviving dependent children for the pecuniary loss suffered by them. It was the duty of the jury to determine the amount of money or property which the evidence showed it was reasonably certain that decedent would have, contributed to his wife in the future and to his children during their minority. The district court correctly instructed, “In determining the amount of damages to be" }, { "docid": "12282981", "title": "", "text": "U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. As to the contention of appellee that appellant failed to prove that the deceased was engaged in interstate commerce, it is sufficient to point out that appellee’s counsel proved on cross-examination of certain of appellant's witnesses that the main line to Denver was included in the tracks over which deceased was walking and with respect to which the jury might find his switching operations were performed. With respect to the contention of the appellant that the record as now presented supplies the missing link in what she contends to be a sufficient chain of causation of her husband’s death, it is necessary to consider the testimony of Dr. Pollard. While appellee’s counsel made some objection to the form of the hypothetical question, the Court permitted it to stand, and counsel, on cross-examination, proceeded on the assumption that the testimony of Dr. Pollard as shown in the margin stands, and we must consider it, with all proper inferences and deductions therefrom, in the light most favorable to appellant. In view of the testimony given on behalf of appellant to the effect that an injury of the type it is contended the decedent suffered probably contributed to the condition resulting in death, the record now before us differs substantially from that dealt with in our previous opinion. The trial judge erred in not submitting the case to the jury, not only on the question of loss of earnings, pain and suffering and injury during life, but also on the question of the cause of death. Inasmuch as the case will be tried again, we should also pass on the issue raised by appellant’s exception to the trial court’s refusal to permit appellant’s counsel to introduce in evidence the hospital records. The applicable statute is found in 28 U.S.C.A. § 1732. In accordance with the expressed terms of this statute, the hospital records were admissible, if they were tendered for the purpose of proving some “act, transaction, occurrence, or event. A proper foundation was made for their admission, for they were produced as the “records”" }, { "docid": "15673734", "title": "", "text": "TRIEBER, District Judge (after stating the facts as above). Did the court err in refusing to direct a verdict in favor of the defendant? The general rule is that questions of negligence do not become questions of law, which justify the direction of a verdict, except where all reasonable men must draw the same conclusions from the evidence. Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249, 258, 29 Sup. Ct. 619, 53 L. Ed. 984; Delk v. St. L. & S. F. Ry. Co., 220 U. S. 580, 31 Sup. Ct. 617, 55 L. Ed. 590; Hart v. Northern Pacific R. Co., 196 Fed. 180, 116 C. C. A. 12. In our opinión the plaintiff was entitled to have the cause submitted to the jury upon the undisputed evidence. That evidence, established that the decedent was on the track in the discharge of his employment by the city, engaged in the construction of a sewer under the defendant’s tracks; that an excavation had been made between these tracks, and he was handing to the workmen below sheathing necessary in the construction of the sewer; that while so employed a train, consisting of a locomotive and five freight cars, backed to the place where he was at work, ran over him and injured him so seriously that he died shortly thereafter from said injuries; that there was no guard at that place to warn him, nor a Itrakeuian on the rear end of the train to warn the decedent or signal to the engineer of the danger to one on the track in order that he might stop the train and prevent the destruction of human life. Evidence that a railway company backed a train of five cars over a place where it was known laborers were engaged in work, without any precautions to warn them of the approach of the train whereby the injury could have been prevented, is clearly sufficient to require the submission to the jury whether the railway company exercised due care for the safety of men working at that place, when, as was" }, { "docid": "1555085", "title": "", "text": "ORDER VINING, District Judge. The above-styled action, sounding in tort, is before the court on Chrysler Motor Corporation’s (Chrysler’s) motion for partial summary judgment and Harold Staggs’ and Lou Rummage’s motion for leave to amend their complaint. On July 27, 1984, Margaret Staggs (“Mrs. Staggs”) was riding in a 1984 Dodge Ram Charger driven by her sister, Lou Rummage (“Rummage”). The two women were in transit from Columbia, Tennessee, to Tallapoosa, Georgia. While passing through Cedartown, Georgia, the vehicle left the road, struck a curb and a mailbox, and ultimately collided with a telephone pole. As a result of the impact with the telephone pole, Mrs. Staggs was pinned on the floorboard of the vehicle, sustaining severe internal injuries. She died several hours later as a result of those injuries. Rummage also sustained some injuries from the collision. There is uncontroverted evidence that Mrs. Staggs was not wearing her seatbelt at the time the vehicle collided with the telephone pole. It is averred that she was not wearing the seatbelt because she weighed too much to comfortably fit it around her. Following the accident, Staggs and Rummage, individually and as co-administrators of Mrs. Staggs’ estate, filed the instant action in this court. Staggs seeks to recov er under a theory of strict products liability for the injuries to and death of his mother and for the resulting damages incurred by him. Rummage seeks to recover under the same theory of strict liability, claiming entitlement to medical costs, lost wages, and a monetary award for pain and suffering. As co-administrators of Mrs. Staggs’ estate, both Staggs and Rummage seek to recover for Mrs. Staggs’ medical expenses, pain and suffering, and funeral expenses. The plaintiffs claim that Chrysler is strictly liable for its failure to install passive restraints (“air bags”), for manufacturing an uncrashworthy vehicle, and for installing defective seats and seat tracks. Chrysler has moved for partial summary judgment, arguing that the plaintiffs’ cause of action involving passive restraints is preempted by congressional legislation and administrative rulemaking. In support of its motion for partial summary judgment, Chrysler relies primarily on section" } ]

[ { "docid": "22693798", "title": "", "text": "of its program to deter drinkers from driving, South Dakota has enacted an “implied consent” law. S. D. Comp. Laws Ann. § 32-23-10 (Supp. 1982). This statute declares that any person operating a vehicle in South Dakota is deemed to have consented to a chemical test of the alcoholic content of his blood if arrested for driving while intoxicated. In Schmerber v. California, 384 U. S. 757 (1966), this Court upheld a state-compelled blood test against a claim that it infringed the Fifth Amendment right against self-incrimination, made applicable to the States through the Fourteenth Amendment. We recognized- that a coerced blood test infringed to some degree the “inviolability of the human personality” and the “requirement that the State procure the evidence against an accused ‘by its own independent labors,’ ” but noted the privilege has never been given the full scope suggested by the values it helps to protect. Id., at 762. We therefore held that the privilege bars the State only from compelling “communications” or “testimony.” Since a blood test was “physical or real” evidence rather than testimonial evidence, we found it unprotected by the Fifth Amendment privilege. Schmerber, then, clearly allows a State to force a person suspected of driving while intoxicated to submit to a blood-alcohol test. South Dakota, however, has declined to authorize its police officers to administer a blood-alcohol test against the suspect’s will. Rather, to avoid violent confrontations, the South Dakota statute permits a suspect to refuse the test, and indeed requires police officers to inform the suspect of his right to refuse. S. D. Comp. Laws Ann. § 32-23-10 (Supp. 1982). This permission is not without a price, however. South Dakota law authorizes the Department of Public Safety, after providing the person who has refused the test an opportunity for a hearing, to revoke for one year both the person’s license to drive and any nonresident operating privileges he may possess. § 32-23-11. Such a penalty for refusing to take a blood-alcohol test is unquestionably legitimate, assuming appropriate procedural protections. See Mackey v. Montrym, supra. South Dakota further discourages the choice of" } ]

[ { "docid": "3402892", "title": "", "text": "unreasonable search and seizure. 1 The availability of other forms of legal, as opposed to physical, coercion arguably cuts against a finding of reasonableness where police fail to utilize those alternatives. In particular, after Schmerber was handed down, the California legislature enacted an implied consent law, Cal.Veh.Code § 13353, as “an additional or alternative method of compelling a person arrested for drunk driving to submit to a test for intoxication, by providing that such person will lose his automobile driver’s license for a period of six months if he refuses to submit to a test for intoxication.” People v. Superior Court of Kern County (Hawkins), 6 Cal.3d 757, 765, 100 Cal.Rptr. 281, 286, 493 P.2d 1145, 1150 (1972). The effect of that legislation, according to the California Supreme Court, was “to equip peace officers with an instrument of enforcement not involving physical compulsion.” Id. The constitutionality of section 13353 was sustained by the California Supreme Court in Hernandez v. Dept. of Motor Vehicles, 30 Cal.3d 70, 177 Cal.Rptr. 566, 634 P.2d 917 (1981). Another legal means for “compelling” DUI suspects to submit to blood (or breath or urine) testing was established in 1982. That year, the United States Supreme Court cleared away the constitutional obstacles that might otherwise have faced prosecutors who sought to introduce the refusal by a DUI suspect to submit to a blood-alcohol test as substantive evidence of guilt in a criminal DUI prosecution. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (refusal to submit to blood alcohol test was not testimonial expression by which a DUI defendant was compelled to incriminate himself, and admitting evidence of refusal without prior warning that it would be used in prosecution did not render proceedings fundamentally unfair). With these alternative weapons for fighting the war against drunk drivers established, Hammer contends that the use of any amount of force by police officers to obtain blood alcohol evidence renders the “search” for it unreasonable within the meaning of the Fourth Amendment. For the following reasons, we decline to adopt the rule Hammer urges. 2 The" }, { "docid": "19221736", "title": "", "text": "that he would refuse the [blood] test. Appellant contends that the testimony regarding his refusal to consent to have his blood drawn implicated his Fourth Amendment right to be free from warrantless searches and seizures. Under Mississippi law, in the case of a driver who refuses to consent to have his blood drawn, “evidence of [his] refusal shall be admissible in any criminal action----” Miss.Code Ann. § 63-11-41 (1972). The United States Supreme Court has upheld the doctrine of implied consent, which as a general matter is recognized in military case law as well. See South Dakota v. Neville, 459 U.S. 553, 566, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (upholding a state statute allowing evidence of refusal to submit to a blood alcohol test as admissible at trial to show evidence of driving under the influence; consent for the test was implied by the accused’s entry onto the state’s motorways); Ricks v. State, 611 So.2d 212, 216 (Miss.1992) (upholding the Mississippi implied consent statute). Regarding military references to implied consent compare United States v. Armstrong, 9 M.J. 374, 383 (C.M.A.1980) (stating that “any applicable requirements of ... ‘implied consent’ ... were met”) with United States v. Pond, 36 M.J. 1050, 1057 (A.F.C.M.R.1993) (holding that the use of an appellant’s initial refusal to undergo a urine test was improper, notwithstanding the state’s implied consent law, because “the California deputy did not follow the terms of the California implied consent statute”). Nonetheless, here too we decline to reach the ultimate question presented. In spite of having invited further briefs on the issue of implied consent we are left with only a passing reference to the doctrine in a somewhat dated opinion of this Court. Missing from Armstrong is a thorough discussion of several important questions such as the current propriety of applying a state implied consent statute to the military or the applicability of the federal implied consent statute, 18 U.S.C. 3118 (2000). This is an important issue which may in the future prove case determinative. Although we could pursue further development of this issue, principles of judicial economy and justice" }, { "docid": "19400625", "title": "", "text": "S.Ct. 2481, 110 L.Ed.2d 412 (1990). Certainly we do not. While some progress has been made, drunk driving continues to exact a terrible toll on our society. See NHTSA, Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012) (reporting that 9,878 people were killed in alcohol-impaired driving crashes in 2011, an average of one fatality every 53 minutes). But the general importance of the government's interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. To the extent that the State and its amici contend that applying the traditional Fourth Amendment totality-of-the-circumstances analysis to determine whether an exigency justified a warrantless search will undermine the governmental interest in preventing and prosecuting drunk-driving offenses, we are not convinced. As an initial matter, States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. See NHTSA Review 173; supra, at 1556 (describing Missouri's implied consent law). Such laws impose significant consequences when a motorist withdraws consent; typically the motorist's driver's license is immediately suspended or revoked, and most States allow the motorist's refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution. See NHTSA Review 173-175; see also South Dakota v. Neville, 459 U.S. 553, 554, 563-564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (holding that the use of such an adverse inference does not violate the Fifth Amendment right against self-incrimination). It is also notable that a majority of States either place significant restrictions on when police officers may obtain a blood sample despite a suspect's refusal (often limiting testing to cases involving an accident resulting in death or serious bodily injury) or prohibit nonconsensual blood tests altogether. Among these States," }, { "docid": "16717267", "title": "", "text": "a number of federal grants are contingent upon a state’s compliance with certain standards mandated by Congress. See, 23 U.S.C. §§ 408 and 410. As a result of the severity of the problem it is inconceivable that Congress in passing the federal implied consent statute intended to give an individual a legal right of refusal. Although the defendant was misinformed concerning the applicability of the Maryland implied consent law, this mistake does not invalidate a test which the defendant did not have the right to refuse. Any error that occurred was harmless. The Court agrees with the position taken by the government on this issue. It is without question that the defendant by his very act of operating a motor vehicle in the special territorial jurisdiction of the United States consented to the chemical test which was administered to him. Although he could have refused the test, he had no statutory right to do so, and the military police had no statutory obligation to advise him that he had a right to refuse. It is true that the defendant must be advised of the consequences of refusal if the government intends to enter the refusal into evidence at trial or suspend defendant’s driving privileges, however, there is no obligation to advise him he had a right to refuse. The question then is how was defendant harmed; how was he mislead or coerced into taking a test that the federal law required he take, such that his due process rights were violated. Clearly, defendant’s due process rights were not violated. The reality is that he received more rights than those to which he was actually entitled. Most notably, the right to refuse the chemical test. Government’s reply pp. 7-8. Under Maryland law, a breathalyzer test in connection with a prosecution for. driving while intoxicated or while under the influence must be administered by a “qualified person.” A qualified person is defined in Md. Code Ann., Cts. & Jud.Proc. § 10-304(a)(3) as, a person who has received, training in the use .of the equipment in a training program approved by the toxicologist" }, { "docid": "22774109", "title": "", "text": "breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant’s plea of insanity. In both situations, the State gives warnings to protect constitutional rights and implicitly promises that any exercise of those rights will not be penalized. In both situations, the State then seeks to make use of the defendant’s exercise of those rights in obtaining his conviction. The implicit promise, the breach, and the consequent penalty are identical in both situations. The Florida Attorney General argues, however, that introduction of the evidence of respondent’s -post-Miranda warnings silence no more violates the Constitution than did the reference to a defendant’s refusal to take a blood-alcohol test in South Dakota v. Neville, supra. In Neville, we rejected the due process challenge — and the attempt to rely on Doyle — because of the important differences between the refusal to take a blood-alcohol test and the post-Miranda warnings silence. We noted that, unlike the refusal to take an optional blood-alcohol test, the right of silence after Miranda warnings is of constitutional dimension. 459 U. S., at 565. We also noted that, unlike the state warning about the refusal to take the blood-alcohol test (which expressly advised Neville that his refusal could be used to deprive him of his driving privileges), Miranda warnings contain implied assurances that silence will not be used against the suspect. 459 U. S., at 565-566. Both Doyle elements —the constitutional dimension and the implied assurance — are equally present when post-Miranda warnings silence is used to prove sanity. Unlike Neville, therefore, and like Doyle, Greenfield received “the sort of implicit promise to forgo use of evidence that would unfairly ‘trick’ [him] if the evidence were later offered against him at trial.” 459 U. S., at 566. The Florida Attorney General further contends that a suspect’s comprehension of Miranda warnings, as evidenced by his silence, is far more probative of sanity than of commission of the underlying offense. He therefore argues that the reliance on the “insolubly ambiguous” character of the post-Miranda" }, { "docid": "9589139", "title": "", "text": "People v. Gebarowski, 47 Mich.App. 379, 383, 209 N.W.2d 543 (1975), which held that a “[d]efendant has no right to refuse to take a breathalyzer test.” This conclusion was based upon Schmerber v. California, 384 U.S. 757, 761 & 765, 86 S.Ct. 1826, 1830 & 1832, 16 L.Ed.2d 908 (1966), where the Supreme Court reasoned that the fifth amendment privilege against self-incrimination does not extend to the results of blood tests. We hold that the privilege protects an accused only from being compelled to testify against himself or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends. * * Hi * * * Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds. In its recent decision in South Dakota v. Mason Henry Neville, — U.S. —, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Supreme Court addressed the question left open in Schmerber, supra, 384 U.S. at 765, n. 9, 86 S.Ct. at 1832, n. 9, and held that admitting in a prosecution for DUIL or DI evidence of a defendant’s refusal to submit to a blood-alcohol test did not offend the privilege against self-incrimination. The Neville Court grounded its decision not upon the testimonial verses non-testimonial distinction drawn in Schmerber, but upon the fact that no impermissible governmental coercion is involved when a suspect refuses to submit to chemical analysis. Neville, supra,-U.S. at -, 103 S.Ct. at 921. Gebarowski, supra, involved a defendant in a DUIL action contending that she was unconstitutionally coerced into waiving her fifth amendment privilege against self-incrimination. Ge-barowski argued that the arresting officer had convinced her that refusal to submit to a breathalyzer test would automatically result in the suspension of her license, although Michigan’s drunk driving statute actually provided for a hearing prior to suspension or revocation. The Michigan Court of Appeals concluded" }, { "docid": "16717261", "title": "", "text": "is admissible in evidence at trial, the Court of Appeals of Maryland has held that ordinarily the refusal is not admissible but may be admitted under some circumstances in connection with a collateral matter not related to the issue of guilt. Krauss v. State, 322 Md. 376, 587 A.2d 1102 (1991). 18 U.S.C. § 3118 provides: (a) Consent — Whoever operates a motor vehicle in the special maritime and territorial jurisdiction of the United States consents, thereby, to a chemical test or tests of such person’s blood, breath, or urine, if arrested for any offense arising from such person’s driving while under the influence of a drug or alcohol in such jurisdiction. The test or tests shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested to have been driving a motor vehicle upon the special maritime and territorial jurisdiction of the United States while under the influence of drugs or alcohol in violation of the laws of a State, territory, possession, or district. (b) Effect of Refusal — whoever, having consented to a test or tests by reason of subsection (a), refuses to submit to such a test or tests, after having first been advised of the consequences of such a refusal, shall be denied the privilege of operating a motor vehicle upon the special maritime and territorial jurisdiction of the United States during the period of a year commencing on the date of arrest upon which such test or tests was refused, and such refusal may be admitted into evidence in any case arising from such person’s driving while under the influence of a drug or alcohol in such jurisdiction. Any person who operates a motor vehicle in the special maritime and territorial jurisdiction of the United States after having been denied such privilege under this subsection shall be treated for the purposes of any civil or criminal proceedings arising out of such operation as operating such vehicle without a license to do so. The defendant contends that the use of the Maryland procedure rather than following the Federal procedure" }, { "docid": "22593405", "title": "", "text": "form advises a DUI arres-tee that he will be offered a breath and/or urine test, and that if he refuses to take the test, his driver’s license will be suspended, as follows: You are under arrest for driving under the influence of alcohol and/or a chemical substance and/or a controlled substance. You will be offered a Breath Test for determining the alcohol content of you[r] breath and/or a Urine Test for detecting the presence of a chemical and/or controlled substance. Should you refuse to take either of the tests, the Department of Highway Safety and Motor Vehicles will suspend your privilege to operate a motor vehicle for a period of twelve (12) months.... Your refusal to submit to a breath and/or urine test upon request of a law enforcement official shall be admissible into evidence in any criminal proceeding. You may, at your own expense, have other Chemical or Physical Tests performed to determine the alcohol content of your blood or breath, or to detect the presence of a chemical and/or controlled substance. Bircoll does not deny that Townsend read aloud the consent form twice. In fact, Bircoll states that he did not read the form himself because Townsend continued talking to Bircoll and Bircoll did not look away from Townsend’s face and down at the form he was given. However, Bircoll also states that because they were side by side and not facing each other, Bircoll had trouble understanding Townsend. Bircoll testified that Townsend “was talking towards the other way.” As Townsend read aloud the consent form for the first time, Bircoll asked if he could get his wallet, which contained a “Driver’s Rights Card.” This card states that any consent to a test is not voluntary, as follows: In compliance with the requirements of Florida’s Implied Consent Law I will consent to submit to tests of my breath, urine, blood or other bodily substances which you may designate, provided the test I am offered is properly done.... However, since I maintain that you do not have probable cause to make this request for a chemical test, my consent" }, { "docid": "16717263", "title": "", "text": "invalidates the chemical test administered to him. It is contended that he was unable to make a free, voluntary and informed choice whether to consent to the chemical test. Specifically, it is contended that he may have refused the test upon being informed that any suspension of driv ing privileges would have been limited to driving within the special maritime and territorial jurisdiction of the United States for a period of one year which, the defendant contends, is a less severe sanction than the suspension imposed by the State of Maryland even though the length of the suspension under Maryland law would be substantially less. If suspended from driving in the State of Maryland, it is likely that he would not be permitted to drive in any State in the United States while the MaryMnd suspension was in effect. Most States have laws similar to Maryland’s which prohibit an individual from driving whenever the individual’s privilege to drive is suspended by another State. See, Trans. II, § 16-303. Although it is debatable, the defendant may be correct in his contention that the Maryland administrative penalties are more severe than those imposed under the Federal statute. See, United States v. Imngren, 98 F.3d 811, 816 (4th Cir.1996). On the other hand, the Court is satisfied that under the Federal statute, the defendant had no legal right to refuse to take the chemical test as a refusal is not a permissible choice. This Court respectfully disagrees with the conclusion to the contrary in United States v. Rogers, supra. Under the statute the request is directed to the person administering the test. It is not directed to the person arrested: It is clear that an individual may be compelled to take a chemical test so long as there are reasonable grounds to believe that the person was driving a motor vehicle while under the influence of alcohol or drugs. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), United States v. Reid, 929 F.2d 990" }, { "docid": "19221735", "title": "", "text": "requires some form of written verification that he is giving the samples, at which time he refused to sign it. [TC:] Okay. What did you do then? [JF:] I contacted Judge Richard Smith, advised him of the circumstances over the telephone, was told to come to his house, which I did. While at the hospital, I filled out the search warrant with his information. I then went to Judge Smith’s house, affirmed to the affidavit. The warrant was signed, and I returned back to the hospital. [TC:] Okay. What happened when you got there? [JF:] I made contact with the RN, and the blood draw was administered. On cross-examination, the defense counsel asked the witness to provide more details about the events at the hospital. [DC:] And how long were you in the emergency room with him [Appellant] before you left to see Judge Smith? [JF:] Probably — I couldn’t even give you a time. It — it was — I was with him enough time to talk to him, for him to tell me that he would refuse the [blood] test. Appellant contends that the testimony regarding his refusal to consent to have his blood drawn implicated his Fourth Amendment right to be free from warrantless searches and seizures. Under Mississippi law, in the case of a driver who refuses to consent to have his blood drawn, “evidence of [his] refusal shall be admissible in any criminal action----” Miss.Code Ann. § 63-11-41 (1972). The United States Supreme Court has upheld the doctrine of implied consent, which as a general matter is recognized in military case law as well. See South Dakota v. Neville, 459 U.S. 553, 566, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (upholding a state statute allowing evidence of refusal to submit to a blood alcohol test as admissible at trial to show evidence of driving under the influence; consent for the test was implied by the accused’s entry onto the state’s motorways); Ricks v. State, 611 So.2d 212, 216 (Miss.1992) (upholding the Mississippi implied consent statute). Regarding military references to implied consent compare United States v." }, { "docid": "22693811", "title": "", "text": "given. You have the right to a chemical test by a person of your own choosing at your own expense in addition to the test I have requested. You have the right to know the results of any chemical test. If you refuse the test I have requested, your driver’s license and any non-residence driving privilege may be revoked for one year after an opportunity to appear before a hearing officer to determine if your driver’s license or non-residence driving privilege shall be revoked. If your driver’s license or non-residence driving privileges are revoked by the hearing officer, you have the right to appeal to Circuit Court. Do you understand what I told you? Do you wish to submit to the chemical test I have requested?” App. 8-10. Responding to other questions, respondent informed the officers that he had been drinking “close to one ease” by himself at home, and that his last drink was “about ten minutes ago.” Tr. of Preliminary Hearing 8. South Dakota Comp. Laws Ann. §19-13-28.1 (Supp. 1982) likewise declares that, notwithstanding the general rule in South Dakota that the claim of a privilege is not a proper subject of comment by judge or counsel, evidence of refusal to submit to a chemical analysis of blood, urine, breath, or other bodily substance “is admissible into evidence” at a trial for driving under the influence of alcohol. A person “may not claim privilege against self-incrimination with regard to admission of refusal to submit to chemical analysis.” Ibid. As Justice Stevens emphasizes, post, at 567, the South Dakota Supreme Court clearly held that the statute violated the State as well as Federal Constitution. Although this would be an adequate state ground for decision, we do not read the opinion as resting on an independent state ground. Rather, we think the court determined that admission of this evidence violated the Fifth Amendment privilege against self-incrimination, and then concluded without further analysis that the state privilege was violated as well. In reaching its holding, the court first analyzed our decisions in Schmerber v. California, 384 U. S. 757 (1966), and" }, { "docid": "3402901", "title": "", "text": "use of deadly force against an unarmed and nondan-gerous fleeing felon is an unreasonable seizure in violation of the Fourth Amendment). . If anything, the state interests in the circumstances of the Schmerber case were slightly stronger than those implicated here. Schmer-ber had apparently been driving drunk at about midnight when his car \"skidded, crossed the road and struck a tree.” Schmerber, 384 U.S. at 758 n. 2, 86 S.Ct. at 1829 n. 2. Both Schmerber and a passenger in his car were injured in the accident. Id. In the instant case, Hammer was driving the only car on the road at 4:00 a.m., and was stopped only for exceeding the speed limit. The Supreme Court has noted that the “severity of the crime at issue” is a factor to which courts should give careful attention in determining the Fourth Amendment reasonableness of a search or seizure. Graham, 109 S.Ct. at 1872. .Apparently, in many other states, statutes prohibit the use of force by police officers to obtain chemical evidence of intoxication without the consent of the DUI suspect. See Note, \" 'Shed Thou No Blood’: The Forcible Removal of Blood Samples from Drunk Driving Suspects,\" 60 So.Cal.L.Rev. 1115, 1117 (1987), and accompanying notes. Even in states that do not prohibit the use of reasonable force, many law enforcement agencies have restricted their own discretion by developing policies or regulations that narrowly define the circumstances in which the use of force is permissible. See id. at 1118 n. 18, citing California Highway Patrol General Order 100.3, “Chemical Tests — Implied Consent Law,” (rev. April 1986) (physical compulsion may be used, with supervisory approval, only if chemical test evidence is essential to felony DUI prosecution of driver involved in accident involving death or permanently disabling injury, and only if medically qualified person consents to do extraction notwithstanding the driver’s resistance). . The California courts have held that “the desirability of obtaining blood samples in a non-coercive manner by one of the tests provided for in section 13353 may not be equated with constitutionality,” and that the results of chemical analysis performed" }, { "docid": "18392272", "title": "", "text": "impossible for the driver, forced to make an immediate decision which later may be used to convict him or her of a crime, to reconcile these contradictions. Those courts that rely on the civil/criminal distinction to hold that a person does not have the right to contact an attorney prior to making a decision regarding testing have ignored the fact that the person is originally arrested for a criminal offense. It is at the time of arrest that certain rights are afforded to the accused, including the right to consult with an attorney prior to making a statement. The obvious and intended effect of the implied consent law is to coerce the driver suspected of driving under the influence to consent to the sobriety test. The results of the blood alcohol level are then admissible against the driver in a subsequent prosecution for DWI. In effect the threat of license revocation (the civil proceeding) is a tool employed at the time of arrest to gather evidence against the driver to utilize in a later criminal prosecution. Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385, 388-89 (1976). To say that the person does not have a right to contact an attorney prior to deciding whether to take the sobriety test, because the license revocation proceeding, initiated once the test is refused, is civil in nature totally ignores the fact that the person is in custody pursuant to án arrest on a criminal charge. The proceedings are all criminal in nature until testing is actually refused. SDCL 32-23-10 specifically provides that pursuant to a lawful arrest for driving under the influence in violation of SDCL 32-23-1, the person shall be requested to submit to a chemical analysis and shall be advised of the right to refuse such testing. If the person refuses testing, he or she must be advised that his or her driver’s license may be revoked pursuant to SDCL 32-23-11 for a period of one year. The fact that by statute, South Dakota allows the arrested driver to refuse to take the test brings into" }, { "docid": "15790516", "title": "", "text": "and further, from the perspective of the Fourth and Fourteenth Amendments, those drivers are treated no differently from other sorts of persons suspected of committing criminal acts. This being so, appellants’ convictions for refusing to take the breathalyzer examination are in accord with the requirements of the United States Constitution. Accordingly, the denial of federal habeas corpus relief is AFFIRMED. . Alaska Statute 28.35.031 provides, in relevant part: Implied Consent, (a) A person who operates or drives a motor vehicle in this state ... shall be considered to have given consent to a chemical test or tests of the person’s breath for the purpose of determining the alcoholic content of the person’s blood or breath if lawfully arrested for an offense ... committed while the person was operating or driving a motor vehicle ... while intoxicated. The Anchorage implied consent law, AMC 9.28.-021, is basically the same as AS 28.35.031. . Alaska Statute 28.35.032 provides, in relevant part: Refusal to submit to chemical test, (a) If a person under arrest refuses the request of a law enforcement officer to submit to a chemical test under AS 28.35.031(a), after being advised by the officer that the refusal will, if that person was arrested while operating or driving a motor vehicle for which a driver’s license is required, result in the denial or revocation of the license or nonresident privilege to drive, that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating or driving a motor vehicle ... while intoxicated, and that the refusal is a misdemeanor, a chemical test shall not be given, except as provided by AS 28.35.035. (g) Upon conviction of a person under this section, the court shall impose a minimum sentence of imprisonment of not less than 72 consecutive hours and a fine of not less than $250.... The Anchorage law regarding sanctions for refusing to submit to a chemical test, AMC 9.28.-022, is virtually identical to AS 28.35.032." }, { "docid": "15790515", "title": "", "text": "been stopped for DWI and who wishes to vindicate himself has two choices under the law. He may take the test as the state prefers him to do. If he does, and the evidence obtained is favorable to him, he will gain his prompt release with no charge being made for drunk driving. See Mackey v. Montrym, 443 U.S. at 19, 99 S.Ct. at 2621. If the evidence is unfavorable, he may challenge the government’s use of that evidence by attacking the validity of the arrest. If he does not take the test, he can still challenge the evidence of his refusal by once again attacking the validity of the arrest. Either way, he remains fully capable of asserting the only Fourth Amendment right he possesses: the right to avoid arrest on less than probable cause. Thus, no improper condition has been placed on the exercise of appellants’ rights under the Fourth Amendment. Appellants’ equal protection argument is without merit. The legislation clearly serves a legitimate state interest. All drivers lawfully stopped are treated equally, and further, from the perspective of the Fourth and Fourteenth Amendments, those drivers are treated no differently from other sorts of persons suspected of committing criminal acts. This being so, appellants’ convictions for refusing to take the breathalyzer examination are in accord with the requirements of the United States Constitution. Accordingly, the denial of federal habeas corpus relief is AFFIRMED. . Alaska Statute 28.35.031 provides, in relevant part: Implied Consent, (a) A person who operates or drives a motor vehicle in this state ... shall be considered to have given consent to a chemical test or tests of the person’s breath for the purpose of determining the alcoholic content of the person’s blood or breath if lawfully arrested for an offense ... committed while the person was operating or driving a motor vehicle ... while intoxicated. The Anchorage implied consent law, AMC 9.28.-021, is basically the same as AS 28.35.031. . Alaska Statute 28.35.032 provides, in relevant part: Refusal to submit to chemical test, (a) If a person under arrest refuses the request of a" }, { "docid": "27938", "title": "", "text": "1826. The district court upheld the warrant-less blood test in this case on analogy to Schmerber. As in Schmerber, police had probable cause to suspect Mr. Marshall of the crime of driving under the influence, and as in Schmerber, the “delay necessary to obtain a warrant under the circumstances threatened destruction of the evidence.” Marshall at 10, App. at 375. Mr. Marshall’s brief can be liberally construed to argue that Schmerber is distinguishable in at least one important respect: state law does not authorize New Mexico police to compel a blood test in a misdemeanor case involving no physical injury, even with a warrant. When a crime is not important enough to justify a warranted search, it is not important enough to justify an “exigent circumstances” search. Under the facts of Schmerber — a serious accident with the potential of a felony prosecution — state law authorized police to procure a warrant for a blood test, and if time and circumstances had permitted, the police could have done so. It was only “the delay necessary to obtain a warrant,” which created the “emergency,” which justified the warrantless search. Schmerber, 384 U.S. at 770, 86 S.Ct. 1826. By contrast, in this case no warrant was available by law for a test of Mr. Marshall’s blood. N.M. Stat. Ann. § 66-8-lll(A) (Michie 1998) provides in relevant part: If a person under arrest for violation of an offense enumerated in the Motor Vehicle Code ... refuses upon request of a law enforcement officer to submit to chemical tests designated by the law enforcement agency as provided in section 66-8-107 NMSA 1978, none shall be administered except when a municipal judge, magistrate or district judge issues a search warrant authorizing chemical tests as provided in section 66-8-107 NMSA 1978 upon his finding in a law enforcement officer’s written affidavit that there is probable cause to believe that the person has driven a motor vehicle while under the influence of alcohol or a controlled substance, thereby causing the death or great bodily injury of another person, or there is probable cause to believe that the" }, { "docid": "13284526", "title": "", "text": "to the presence of counsel during the swabbing, because the court would have been considering cases such as Schmerber v. California, 384 U.S. 757, 765-66, 86 S.Ct. 1826, 1832-33, 16 L.Ed.2d 908 (1966) (no right to counsel where police take blood sample), and United States v. Wade, 388 U.S. 218, 227-28, 87 S.Ct. 1926, 1932-33, 18 L.Ed.2d 1149 (1967) (no right to counsel, because counsel’s absence causes only minimal risk of unfair trial, where police take fingerprints or samples of blood, clothing or hair) (dicta). Neither was there a reasonable probability that the court would have found such a right in the Oregon constitution. See, e.g., State v. Gardner, 52 Or.App. 663, 629 P.2d 412, 415 (1981) (no right to counsel for police station breathal-zyer test, relying heavily on Wade). Counsel similarly did not err by failing to claim on appeal that the admission of evidence indicating Miller’s refusal to submit to the test violated Miller’s privilege against self-incrimination. Such a claim did not have a reasonable probability of succeeding, either under the federal constitution, see, e.g., Schmerber, 384 U.S. at 765, 86 S.Ct. at 1832; Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980) (Miranda rights attach only where police subject suspect in custody to express questioning or its functional equivalent); South Dakota v. Neville, 459 U.S. 553, 563-64, 103 S.Ct. 916, 922-23, 74 L.Ed.2d 748 (1983) (evidence of refusal to submit to blood-alcohol test may be admitted at trial without offending privilege against self-incrimination), or the Oregon constitution, Gardner, 629 P.2d at 416 (relying heavily on Schmerber). Because Miller had only a remote chance of obtaining reversal based upon the admission of evidence of the hand wiping incident, he cannot satisfy either of the Strickland prongs: Appellate counsel was not ineffective for failing to raise the issue, and Miller suffered no prejudice on account of counsel’s performance. Miller was accordingly not denied his constitutional right to the effective assistance of appellate counsel. Ill The judgment of the district court, denying Miller’s petition for a writ of habeas corpus, is affirmed. ." }, { "docid": "16717260", "title": "", "text": "license [or driving privilege] for 45 days; or B. For a second or subsequent offense, suspend the driver’s license [or driving privilege] for 90 days; or 2. For a test refusal: A. For a first offense, suspend the driver’s license [or driving privilege] for 120 days; or B. For a second or subsequent offense, suspend the driver’s license [or driving privilege] for 1 year. The statute has been construed by the Maryland Court of Appeals as requiring an affirmative consent from the individual to be tested. State v. Loscomb, 291 Md. 424, 435 A.2d 764 (1981). Rather than being an implied consent statute, it has been described as an express consent statute. State v. Moon, 291 Md. 463, 492-493, 436 A.2d 420, 435 (1981), Davidson J. dissenting. Furthermore, Form DR-15 utilized by the State of Maryland and by the military police in this case specifically advises that, “you have the right to refuse to submit to the test”. Although Cts. & Jud. Proc. § 10-309(a)(2) indicates that a refusal to submit to a chemical test is admissible in evidence at trial, the Court of Appeals of Maryland has held that ordinarily the refusal is not admissible but may be admitted under some circumstances in connection with a collateral matter not related to the issue of guilt. Krauss v. State, 322 Md. 376, 587 A.2d 1102 (1991). 18 U.S.C. § 3118 provides: (a) Consent — Whoever operates a motor vehicle in the special maritime and territorial jurisdiction of the United States consents, thereby, to a chemical test or tests of such person’s blood, breath, or urine, if arrested for any offense arising from such person’s driving while under the influence of a drug or alcohol in such jurisdiction. The test or tests shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested to have been driving a motor vehicle upon the special maritime and territorial jurisdiction of the United States while under the influence of drugs or alcohol in violation of the laws of a State, territory, possession, or district. (b) Effect of" }, { "docid": "18392282", "title": "", "text": "defeat the purpose of the implied consent law. In summary, the Court holds that when a person is arrested for DWI and the person requests to speak with an attorney prior to submitting to testing, the person must be allowed a reasonable opportunity to attempt to contact an attorney. If an attorney cannot be reached within a reasonable period of time, the person may need to make an independent decision without the aid of counsel. The Court finds in the present case that while Braunsreither’s constitutional rights were protected, these same rights were denied in the Heles case. The foregoing memorandum decision constitutes the Court’s findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure. The Clerk of the Court shall prepare an appropriate judgment. . SDCL 32-23-10 provides: Any person who operates any vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, urine, breath or other bodily substance for the purpose of determining the amount of alcohol in his blood, as provided in section 32-23-7, (presumptions arising from chemical analysis of body fluids) provided that such test is administered at the direction of a law enforcement officer having lawfully arrested such person for a violation of section 32-23-1 (driving or control of vehicle prohibited while under the influence of alcohol or drug). Such person shall be requested by said officer to submit to such analysis and shall be advised by said officer of his right to refuse to submit to such analysis and the provisions of sections 32-23-11 and 32-23-12 in the event of such refusal with respect to the revocation of such person’s driving license. SDCL 32-23-11 provides: Any person described in section 32-23-10 not given a chemical analysis because of his right to refuse such test shall have the opportunity to demand a hearing pursuant to chapter 1-26 (South Dakota Administrative Procedures Act) before further action is taken under this section. After this opportunity, if the department finds that the law enforcement officer complied with the law and" }, { "docid": "16717264", "title": "", "text": "be correct in his contention that the Maryland administrative penalties are more severe than those imposed under the Federal statute. See, United States v. Imngren, 98 F.3d 811, 816 (4th Cir.1996). On the other hand, the Court is satisfied that under the Federal statute, the defendant had no legal right to refuse to take the chemical test as a refusal is not a permissible choice. This Court respectfully disagrees with the conclusion to the contrary in United States v. Rogers, supra. Under the statute the request is directed to the person administering the test. It is not directed to the person arrested: It is clear that an individual may be compelled to take a chemical test so long as there are reasonable grounds to believe that the person was driving a motor vehicle while under the influence of alcohol or drugs. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), United States v. Reid, 929 F.2d 990 (4th Cir.1991), See also, 36 C.F.R. § 4.23(c)(2). Of course, unreasonable physical violence in administering the test would likely not be sanctioned and would likely invalidate the test. See, South Dakota v. Neville, supra and Schmerber v. California, supra. See also, People v. Hanna, 223 Mich.App. 466, 567 N.W.2d 12, (1997, released Aug. 16, 1997), 61 CrL 1447 (8/20/97). The problem of the drunk driver is one of the major issues facing our nation today. Although there may have been some improvement in the recent past in the reduction of fatalities caused by drunk drivers, the issue is one of major proportions. The Supreme Court in recognizing this problem stated: The situation underlying this case — that of the drunk driver — occurs with tragic frequency on our Nation’s highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This court although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 U.S. 432, 439, [77" } ]

[ { "docid": "6508197", "title": "", "text": "Taylor’s complaint, the district court relied, by analogy, upon several cases dealing with the “sue and be sued” clause in the Federal Housing Act, 12 U.S.C. § 1702 (1982), authorizing suits by and against the Secretary of Housing and Urban Development (“HUD”). Lomas & Nettleton Co. v. Pierce, 636 F.2d 971 (5th Cir.1981); Industrial Indemnity, Inc. v. Landrieu, 615 F.2d 644 (5th Cir.1980); Marcus Garvey Square v. Winston Burnett Construction Co., 595 F.2d 1126 (9th Cir.1979); DSI Corp. v. Secretary of Housing and Urban Development, 594 F.2d 177 (9th Cir.1979). These cases hold that section 1702 waives immunity as to HUD only and not as to the United States generally. The key to whether a suit is against HUD or the United States is the location of the fund from which the judgment is recoverable. If the judgment is recoverable from funds in possession and control of the Secretary that are severed from possession and control of the Treasury, the suit is against the Secretary and thus, within the scope of section 1702. However, if the judgment must be paid from the Treasury, it is a suit against the United States, for which the plaintiff must have a waiver of sovereign immunity independent of section 1702. Applying the reasoning of these cases to the SBA “sue and be sued” clause, section 634(b)(1), the district court found: There is no fund separate and apart from the Treasury from which a judgment against the Administrator could be paid. Taylor’s claims evolved from lease guarantees allegedly made by the Administrator back in 1972. 15 U.S.C. § 694, which created a revolving fund for commercial or lease guarantees made by the Administrator, specifically provides that a separate fund for guarantees is created “within the Treasury.” There have been no appropriations for this fund since 1976. 13 C.F.R. § 106.01 (1981). Therefore, even assuming that the revolving fund was separate and apart from Treasury control, there is now no separate fund in existence from which a judgment might be satisfied. Since any potential recovery must come from the United States Treasury, this action is actually" } ]

[ { "docid": "10846202", "title": "", "text": "expend itself on the public treasury or domain, or interfere with the public administration.” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) (quoting Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947)). FPI is a wholly owned Government corporation, see 31 U.S.C. § 9101, and all money under FPI’s control is held by the U.S. Treasury to the credit of FPI. See 18 U.S.C. § 4126(a) (1994). Thus, any judgment in Galvan’s favor would require FPI to pay damages directly from the public treasury. See generally Sprouse v. Federal Prison Industries, Inc., 480 F.2d 1, 3 (5th Cir.1973) (“[T]hough the prisoners vehemently deny it, ‘the conclusion is inescapable that the suit is essentially one designed to reach money which the government owns.’ ” (quoting Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 375, 66 S.Ct. 219, 90 L.Ed. 140, (1945))). Pointing to 18 U.S.C. § 4126(b), which says that “[a]ll valid claims and obligations payable out of said fund [the FPI fund at Treasury] shall be assumed by the corporation,” Galvan characterizes the corporation as “self-sufficient.” This is quite immaterial. “Federal agencies or instrumentalities performing federal functions always fall on the ‘sovereign’ side of [the] fault line” between suits against the sovereign and suits against individuals, regardless of any independence of accounts. Auction Co. of America v. FDIC, 132 F.3d 746, 752 (D.C.Cir.1997). “Diversion of resources from a private entity created to advance federal interests has effects similar to those of diversion of resources directly from the Treasury.” Id. In fact, as a government corporation FPI is not only a federal instrumentality but is also an “executive agency,” 5 U.S.C. § 105, and on that account deserves sovereign immunity in the absence of congressional waiver. See FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”). Galvan argues that Congress waived FPI’s immunity both in FPI’s organic statute, 18 U.S.C. § 4121, and in the False Claims Act, 31 U.S.C." }, { "docid": "17054496", "title": "", "text": "Congress, in waiving sovereign immunity for an agency, may limit the terms of the waiver. As later cases picked up Burr, however, the doctrine changed shape. Marcus Garvey Square, 595 F.2d at 1131, restated it as the principle that a suit is against an agency only if plaintiffs can point to agency monies to satisfy a potential judgment. If no identifiable fund within the possession and control of the agency exists, the suit is in reality against the United States. For this proposition, Ganey cited Burr and the sovereign immunity classics Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963), and Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012-13, 91 L.Ed. 1209 (1947). The Garvey court concluded that because no such fund could be found, Claims Court jurisdiction was exclusive despite a sue-or-be-sued clause: Recovery would be against the U.S. and could be had only pursuant to the Tucker Act waiver. It is at this point that confusion becomes evident. The practical weakness of the idea that recovery of funds within an agency’s control is not recovery against the United States is, we think, well exposed by the Fourth Circuit’s observation that “[t]he funds appropriated to HUD ... clearly originate in the public treasury, and they do not cease to be public funds after they are appropriated.” Portsmouth, 706 F.2d at 473-74. Cf. Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223, 1227-28 (D.C.Cir.1994) (“[Diversion of resources from a private entity created to advance federal interests has effects similar to those of diversion of resources directly from the Treasury.”). The logical fallacy is just as clear. To ascertain whether a suit is against the United States, rather than a federal agency, the Marcus Garvey court and similar cases have turned to the test enunciated in Dugan and Land. See, e.g., Portsmouth, 706 F.2d at 473 (citing Dugan); Industrial Indemnity, 615 F.2d at 646 (citing both); Marcus Garvey, 595 F.2d at 1131 (citing both). But this test was designed to distinguish suits against ;private individuals from ones against the sovereign; it identifies" }, { "docid": "11723736", "title": "", "text": "59(e) motion and the motion for new trial. We emphasize the fact that the FDIC raised the punitive damage issue in the district court while that court still had under consideration the timely filed motion for new trial and to alter or amend judgment filed by MBank. Because the motions were filed before the time for filing a notice of appeal had expired, the issue was raised in the trial court when there was no final unappealable judgment. Turning to the merits of the case, the question we are asked to decide is whether the FDIC, as a post-judgment iri-tervenor, can assert sovereign immunity as a defense for the first time in a Rule 60(b) motion before the judgment in the district court becomes final and unappealable. Sovereign immunity is a jurisdictional bar to those suits “that are prosecuted against the United States.” Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 412, 5 L.Ed. 257 (1821). Even if the United States was not named as a party in the original action, “ ‘if the judgment sought would expend itself upon the public treasury or domain, or interfere with public administration,’ ... or if the effect of the judgment would- be ‘to restrain the Government from acting, or to compel it to act the suit will be construed as one against the United States requiring a waiver of sovereign immunity. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 1468, 93 L.Ed. 1628 (1949); Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947)); Van Drasek v. Lehman, 762 F.2d 1065, 1069 (D.C.Cir.1985); see also Alabama Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1225 (5th Cir.1976). “A waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ ” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969))." }, { "docid": "23609629", "title": "", "text": "361 (D.C.Cir.1987) (although statute subject to several interpretations, court accepted agency’s interpretation as reasonable), cert. denied, 486 U.S. 1055, 108 S.Ct. 2820, 100 L.Ed.2d 922 (1988); General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565-67 (D.C.Cir.1984) (applying Chevron deference to an interpretive rule), cert. denied, 471 U.S. 1074, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985); Chrysler Corp. v. EPA, 631 F.2d 865, 884 (D.C.Cir.) (according EPA's interpretation important significance), cert. denied, 449 U.S. 1021, 101 S.Ct. 589, 66 L.Ed.2d 483 (1980). . It must be emphasized that the EPA is not relying on sovereign immunity as a defense. Rather, it urges only that, as a matter of statutory construction, a legislative waiver of sovereign immunity be construed narrowly. Therefore, Bethlehem’s argument that the district court erred because the Administrative Procedures Act waives sovereign immunity as a defense deserves no extended discussion. . We see no merit in Bethlehem’s argument that the nature of the action (against the Superfund — a segregated account) precludes the application of the usual rule of construction regarding sovereign immunity. In Schlafly v. Volpe, 495 F.2d 273, 279-80 (7th Cir.1974), this court determined that a suit against the government to recover funds in the Highway Trust Fund was covered by the sovereign immunity doctrine. The court determined that, despite the fact that the money would come from a trust fund, a \"judgment ... would expend itself on the public treasury or domain.” Id. at 279 (quoting Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947)); see abo Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (sovereign immunity triggered when judgment would \"expend itself on the public treasury”). .Wright-Moore Corp. v. Ricoh Corp., 908 F.2d 128, 142 (7th Cir.1990) (Ripple, J., dissenting)." }, { "docid": "22305883", "title": "", "text": "by the City and URA therefore depends upon whether the suit is in reality against HUD or is in fact against the United States. Whether this suit is against the United States or against HUD depends, in turn, upon whether recovery on the claim would come from funds in the control of HUD, “severed from Treasury funds and Treasury control,” Federal Housing Administration, Region No. 4, 309 U.S. at 250, 60 S.Ct. at 492, or would come from general treasury revenue. In the latter case, the suit in reality is against the United States. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999,1006,10 L.Ed.2d 15 (1963) (quoting Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947)); S.S. Silberblatt, Inc., 608 F.2d at 36; Marcus Garvey Square, 595 F.2d at 1131. The crucial determination, then, is whether a judgment for damages in this cause of action would be satisfied from funds under HUD’s control, or from general treasury revenue. In the former instance, a valid waiver of sovereign immunity may be found to exist, and since, as discussed, the court had subject matter jurisdiction under section 1442, the first cause of action was properly before it. If the judgment is to be satisfied from general treasury revenue, however, there is no waiver of sovereign immunity beyond the Tucker Act, which waives immunity only to the extent of permitting suit in the Court of Claims. Because no finding was made as to the source of the monies that would be used to satisfy any judgment in this case, we remand to the trial court with instructions to determine this question and, accordingly, its jurisdiction over this cause of action. B. The Second Cause of Action The City and URA characterize their second cause of action as one in negligence. Brief for Defendant and Third-Party Plaintiff-Appellant City at 16; Brief for Defendant and Third-Party Plaintiff-Appellant URA at 16-17. We agree, and it therefore is governed by the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1982). The district court dismissed the cause on the grounds" }, { "docid": "15077479", "title": "", "text": "dismissal. The direct claims against HUD are barred by sovereign immunity because the United States has not consented to suit under the civil rights statutes. Penn v. Sehlesinger, 5 Cir. 1973, 490 F.2d 700, 703-04, rev’d on other grounds, 5 Cir. en banc, 1974, 497 F.2d 970, cert. denied, 1976, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385; Beale v. Blount, 5 Cir. 1972, 461 F.2d 1133. The mere fact that federal legislation protects these rights does not imply that the United States has waived its immunity. See United States v. Testan, 1976, 424 U.S. 392, 400-01, 96 S.Ct. 948, 954, 47 L.Ed.2d 114, 122. While the appellants cited Section 1702 of the National Housing Act, 12 U.S.C. § 1702, which waives sovereign immunity for actions arising under that Act, the complaint did not assert, either expressly or by inference, any violation of that Act. See FHA, Region No. 4 v. Burr, 1940, 309 U.S. 242, 244-246, 60 S.Ct. 488, 490-91, 84 L.Ed. 724, 728-29. Cf. Keifer & Keifer v. Reconstruction Finance Corp., 1939, 306 U.S. 381, 389-92, 59 S.Ct. 516, 517-19, 83 L.Ed. 784, 788-90. The claims asserted against Hills and Hazelwood are in reality suits against the sovereign: each official was sued in an official capacity; the complaint does not allege any specific misconduct by either of them in his or her private capacities; and the monetary damages, if awarded, would be paid from the public fisc. Dugan v. Rank, 1963, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15, 23; Land v. Dollar, 1947, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209, 1216; Carter v. Seamans, 5 Cir. 1969, 411 F.2d 767, 770, cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121. The claims against the officials are barred, therefore, unless one of the two exceptions to sovereign immunity applies. See Larson v. Domestic & Foreign Commerce Corp., 1948, 337 U.S. 682, 689-90, 69 S.Ct. 1457, 1461-62, 93 L.Ed. 1628, 1635-36; Martinez v. Marshall, 9 Cir. 1977, 573 F.2d 555, 560; Petterway v. Veteran’s Administration Hospital, 5 Cir. 1974," }, { "docid": "35067", "title": "", "text": "that this court lacks subject matter jurisdiction, it is unnecessary to decide whether res judicata bars the plaintiffs claims. II. Analysis. A.Sovereign Immunity. Plaintiff’s complaint names the DOE as defendant, and seeks money damages. A suit against a federal agency is deemed to be a suit against the United States “if judgment would expend itself on the public treasury or domain_” Dugan et al. v. Rank et al., 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). Therefore, this action must be construed as a suit against the United States. As sovereign, the United States is immune from suit unless it expressly has consented to be sued. The terms of its consent to be sued define the court’s jurisdiction to entertain the suit. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); Ascot Dinner Theatre, Ltd. v. Small Business Administration, 887 F.2d 1024, 1027 (10th Cir.1989). It follows that the plaintiff’s claim against the United States is barred except to the extent that the United States may have waived sovereign immunity. Waiver of sovereign immunity can not be implied, but must be unequivocally expressed. Testan, 424 U.S. at 399, 96 S.Ct. at 953-54; Ascot, 887 F.2d at 1027. Plaintiff asserts two bases for subject matter jurisdiction, 28 U.S.C. § 1331 and 31 U.S.C. § 3730(h). Absent a clear waiver of sovereign immunity in one of the statutes relied on to support jurisdiction, the action must be dismissed. B.Section 1331 Does Not Waive Sovereign Immunity. Plaintiff’s assertion that 28 U.S.C. § 1331 constitutes a waiver of sovereign immunity is without merit. That section provides: “The district courts shall have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the United States.” It may be agreed that every claim against the United States presents a federal question. Therefore, if § 1331 constituted a waiver of sovereign immunity, every plaintiff with a claim against the United States or one of its agencies could maintain a federal district court action. Clearly this is not the law. Section 1331 implies" }, { "docid": "4906278", "title": "", "text": "Burr, however, the Supreme Court held that the “sue and be sued” clause of § 1702 is a limited waiver, authorizing the suit in that instance against the agency, but limiting recovery to funds in the possession and control of the agency. Where recovery would require funds from the public treasury, on the other hand, the suit is one against the United States, Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947), and does not come within the limited waiver of sovereign immunity contained in § 1702. Marcus Garvey Square, Inc., v. Winston Burnett Construction Co., 595 F.2d 1126 (9th Cir. 1979); DSI Corp. v. Secretary of HUD, 594 F.2d 177 (9th Cir. 1979). See Burr, 309 U.S. at 250, 60 S.Ct. at 492. Cf. Waylyn Corp. v. United States, 231 F.2d 544 (1st Cir.), cert. denied, 352 U.S. 827, 77 S.Ct. 40, 1 L.Ed.2d 49 (1956). In this case it is not alleged that HUD holds any funds related to the subject matter of this action. The ten per cent retainage as to which plaintiffs allege that HUD violated “equitable” obligations was not held by HUD and in any event was paid out before these actions were commenced. This conclusion would end the inquiry about § 1702 were it not for reported cases in which the results reached might be thought inconsistent with the foregoing analysis. In few of those cases, however, did the opinion of the court note whether the recovery sought would require funds from the United States Treasury and, if so, whether the limited waiver of sovereign immunity in § 1702 as construed in Burr, would be inapplicable. None of those few cases appears to have involved a fact situation comparable to that in these actions, where the retainages from which plaintiff subcontractors allege they should have been paid were never held by HUD and in any event had been paid out in full before the actions were commenced. Moreover, to the extent that cases such as Industrial Indemnity" }, { "docid": "23682473", "title": "", "text": "Inc. v. Landrieu, 615 F.2d 644, 646-47 (5th Cir.1980) (sovereign immunity waived with respect to suit by building contractor’s surety and assignee for payment for construction work on housing project which was insured by HUD pursuant to 12 U.S.C. § 1715 1(d)(4)); S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 36 (2d Cir.1979) (waiver of sovereign immunity satisfied and HUD held liable to general contractor for amounts due on project financed under 12 U.S.C. § 1715z-l); Bor-Son Bldg. Cory. v. Heller, 572 F.2d 174, 179-80 (8th Cir.1978) (waiver of sovereign immunity satisfied by contractor’s suit against HUD in connection with construction work on federally insured housing project). Even in commercial actions, the courts have recognized the limitation established in Burr that “[f]or a claim to be against [HUD] and therefore within the scope of the “sue and be sued” clause, as opposed to a suit against the United States, any judgment for plaintiff must be out of funds in control of [HUD] as distinguished from general treasury funds.” Silberblatt, 608 F.2d at 36. That limitation has been utilized to bar contract damages actions which would require monetary recovery from funds beyond those within HUD’s control and therefore not severed from general Treasury funds. See, e.g., United States v. Adams, 634 F.2d 1261, 1266 (10th Cir.1980). Since the judgment in such a suit “would expend itself on the public treasury,” Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947), the suit is considered an impermissible action against the sovereign to which sovereign immunity applies. See Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). Civil rights actions against HUD seeking declaratory relief or injunctions generally have been brought without analysis of § 1702 or sovereign immunity, see, e.g., Garrett v. City of Hamtramck, 503 F.2d 1236 (6th Cir.1974), since the review provisions of the Administrative Procedure Act are made applicable to agency action taken pursuant to civil rights laws by 42 U.S.C. § 2000d-2. Accordingly, as long as the civil rights action is not seeking dam" }, { "docid": "6047390", "title": "", "text": "view, require affirmative action by the sovereign or the disposition of sovereign property. New Mexico seeks to change in a significant manner the Secretary’s methods of calculating the windfall tax and state royalties; this change would clearly reduce amounts already collected in the Treasury pursuant to the windfall profits tax and require the payment of substantial sums to New Mexico. Thus, as a practical matter, the “essential nature and effect of the proceeding” is such “that the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration.” Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947). See also Du-gan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); Mine Safety Co. v. Forrestal, 326 U.S. 371, 375, 66 S.Ct. 219, 221, 90 L.Ed. 140 (1945). Having concluded that New Mexico’s suit is directed against the United States, we must determine whether the United States has consented to such suits in federal district court. See United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). The district court, as has been mentioned, based its finding of jurisdiction upon 28 U.S.C. § 1331, and the waivers of sovereign immunity found in 5 U.S.C. § 702 (the Administrative Procedures Act), and 28 U.S.C. §§ 1361, 2201 (federal mandamus and declaratory judgment). While 28 U.S.C. § 1331 grants to the district court broad subject matter jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States, that section does not include a general waiver of sovereign immunity by the United States. See B.K. Instrument, Inc. v. United States, 715 F.2d 713, 724 (2d Cir.1983). We must therefore look elsewhere in order to examine the extent to which the United States has consented to suit in district court. Section 702 of the Administrative Procedure Act contains a limited waiver of the United States’ sovereign immunity. That section reads in pertinent part: A person suffering legal wrong because of agency action ... is entitled to judicial review" }, { "docid": "23682474", "title": "", "text": "36. That limitation has been utilized to bar contract damages actions which would require monetary recovery from funds beyond those within HUD’s control and therefore not severed from general Treasury funds. See, e.g., United States v. Adams, 634 F.2d 1261, 1266 (10th Cir.1980). Since the judgment in such a suit “would expend itself on the public treasury,” Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947), the suit is considered an impermissible action against the sovereign to which sovereign immunity applies. See Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). Civil rights actions against HUD seeking declaratory relief or injunctions generally have been brought without analysis of § 1702 or sovereign immunity, see, e.g., Garrett v. City of Hamtramck, 503 F.2d 1236 (6th Cir.1974), since the review provisions of the Administrative Procedure Act are made applicable to agency action taken pursuant to civil rights laws by 42 U.S.C. § 2000d-2. Accordingly, as long as the civil rights action is not seeking dam ages, it is unnecessary to assert § 1702 as waiving HUD’s sovereign immunity. “It is only where, as here, the claimants seek monetary damages, and thus cannot rely on the APA, that § 1702. is urged as a waiver of sovereign immunity for civil rights actions against HUD.” United States v. Yonkers Board of Education, 594 F.Supp. 466, 473 (S.D.N.Y.1984). The few courts which have addressed the issue of sovereign immunity with respect to §§ 1981 and 1982 damages actions against HUD have been inconsistent in their analysis and in their conclusions. Compare, Unimex, Inc. v. HUD, 594 F.2d 1060 (5th Cir.1979) (complaint alleging violations of 42 U.S.C. §§ 1981, 1982 and 1986 barred by sovereign immunity, § 1702 inapplicable as complaint did not assert any violations of the National Housing Act), with, Baker v. F & F Investment Co., 489 F.2d 829 (7th Cir.1973). The only cases which have analyzed this question in light of the principles set forth in Burr are Yonkers, supra, 594 F.Supp. at 470-73, and Little Earth of United Tribes" }, { "docid": "14507693", "title": "", "text": "Court of Claims might determine that it, too, lacked authority to hear the case, certified an interlocutory appeal which was accepted by this court pursuant to 28 U.S.C. § 1292(b) (1976). We reverse and remand for trial on the merits. Section 1 of the National Housing Act, as amended, 12 U.S.C. § 1702 (1976) provides in relevant part that: The Secretary shall, in carrying out the provisions of . [inter alia, the National Housing Act], be authorized, in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal. For Industrial Indemnity’s claim to be against the Secretary, and therefore within the scope of the “sue and be sued” clause, as opposed to a suit against the United States that could not be brought in federal district court, any judgment for the plaintiff must be recoverable from funds in the possession and control of the Secretary that are severed from Treasury funds and Treasury control. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947); Federal Housing Administration v. Burr, 309 U.S. 242, 250, 60 S.Ct. 488, 492, 84 L.Ed. 724 (1940); S. S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 36 (2d Cir. 1979); Marcus Garvey Square, Inc. v. Winston Burnett Construction Co., 595 F.2d 1126, 1130-31 (9th Cir. 1979); DSI Corp. v. Secretary of Housing and Urban Development, 594 F.2d 177, 179-80 (9th Cir. 1979). (a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of: (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. . We find that the present suit is against the Secretary of Housing and Urban Development, and not against the United States. A" }, { "docid": "22305882", "title": "", "text": "whether a waiver of sovereign immunity exists that would permit the district court to entertain this cause of action. The City and URA argue that such a waiver is found in 42 U.S.C. § 1456(c)(1) (1982), which authorizes the Secretary to “sue and be sued” on claims arising out of the Act. There is some case law within this Circuit to the effect that section 1456(c)(1) constitutes at least a limited waiver of sovereign immunity. See English v. Town of Huntington, 335 F.Supp. 1369, 1373 (E.D.N.Y.1970). Such “sue and be sued” waivers, however, apply only to suits against the specific entity whose immunity was waived and have no application to suits against the United States generally. See Federal Housing Administration, Region No. 4 v. Burr, 309 U.S. 242, 250-51, 60 S.Ct. 488, 492-493, 84 L.Ed. 724 (1940) (construing the National Housing Act); S.S. Silberblatt, Inc., 608 F.2d at 35-36 (same); Marcus Garvey Square, 595 F.2d at 1131 (same); Bor-Son Building Corp., 572 F.2d at 179-81 (same). The validity of the waiver of sovereign immunity claimed by the City and URA therefore depends upon whether the suit is in reality against HUD or is in fact against the United States. Whether this suit is against the United States or against HUD depends, in turn, upon whether recovery on the claim would come from funds in the control of HUD, “severed from Treasury funds and Treasury control,” Federal Housing Administration, Region No. 4, 309 U.S. at 250, 60 S.Ct. at 492, or would come from general treasury revenue. In the latter case, the suit in reality is against the United States. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999,1006,10 L.Ed.2d 15 (1963) (quoting Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947)); S.S. Silberblatt, Inc., 608 F.2d at 36; Marcus Garvey Square, 595 F.2d at 1131. The crucial determination, then, is whether a judgment for damages in this cause of action would be satisfied from funds under HUD’s control, or from general treasury revenue. In the former instance, a valid waiver of sovereign immunity" }, { "docid": "17054495", "title": "", "text": "of Federal Claims because it demands more than $10,000. If the suit were against the FDIC (and not the United States), § 2401(a) could not apply. Compare Portsmouth, 706 F.2d at 473,.(finding exclusive Claims Court jurisdiction where suit is against U.S.) with Ammcon, Inc. v. Kemp, 826 F.Supp. 639, 643-44 (E.D.N.Y.1993) (finding § 2401(a) inapplicable where suit is against HUD). Because we believe this reasoning is fundamentally confused, we avoid it entirely and accept neither horn of the dilemma. A demonstration of the confusion requires 'a brief trip into the origins of the distinction between suits against the United States and those against an agency. In Federal Housing Administration, Region No. 4 v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940), the Supreme Court noted that the statute authorizing suit against the Federal Housing Administration specified that claims could be paid only from funds made available to the agency under that very statute. Id. at 250, 60 S.Ct. at 492-93. This of course did no more than state the unexceptionable principle that Congress, in waiving sovereign immunity for an agency, may limit the terms of the waiver. As later cases picked up Burr, however, the doctrine changed shape. Marcus Garvey Square, 595 F.2d at 1131, restated it as the principle that a suit is against an agency only if plaintiffs can point to agency monies to satisfy a potential judgment. If no identifiable fund within the possession and control of the agency exists, the suit is in reality against the United States. For this proposition, Ganey cited Burr and the sovereign immunity classics Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963), and Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012-13, 91 L.Ed. 1209 (1947). The Garvey court concluded that because no such fund could be found, Claims Court jurisdiction was exclusive despite a sue-or-be-sued clause: Recovery would be against the U.S. and could be had only pursuant to the Tucker Act waiver. It is at this point that confusion becomes evident. The practical weakness of the idea" }, { "docid": "14507694", "title": "", "text": "(1963); Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947); Federal Housing Administration v. Burr, 309 U.S. 242, 250, 60 S.Ct. 488, 492, 84 L.Ed. 724 (1940); S. S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 36 (2d Cir. 1979); Marcus Garvey Square, Inc. v. Winston Burnett Construction Co., 595 F.2d 1126, 1130-31 (9th Cir. 1979); DSI Corp. v. Secretary of Housing and Urban Development, 594 F.2d 177, 179-80 (9th Cir. 1979). (a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of: (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. . We find that the present suit is against the Secretary of Housing and Urban Development, and not against the United States. A judgment against the Secretary establishing plaintiff’s entitlement can be paid out of money in the General Insurance Fund that is a separate fund in the control and possession of the Secretary. See Trans-Bay Engineers & Builders, Inc. v. Hills, 179 U.S.App.D.C. 184, 551 F.2d 370 (D.C.Cir.1976) (Special Risk Insurance Fund supporting High Risk Insurance Program of 12 U.S.C. § 1715z-1 (1976) was separate fund in control and possession of Secretary for purposes of sovereign immunity under 12 U.S.C. § 1702); S. S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 35 (2d Cir. 1979) (claim involving 12 U.S.C. § 1715z-1 program held to be against Secretary of Housing and Urban Development because judgment for plaintiff could be paid out of High Risk Insurance Fund appropriated under National Housing Act and in control or subject to the discretion of the Secretary). The judgment would not “ ‘expend itself in the public treasury,’ ” Dugan v. Rank, supra, 372 U.S. at 620, 83 S.Ct. at 1006, quoting Land v. Dollar, 330 U.S. 731, 738, 67" }, { "docid": "4906277", "title": "", "text": "the provisions of this subchapter [I] and sub-chapters II, III, V, VI, VII, VIII, X, IXA, and IX-B, of this chapter [the National Housing Act], be authorized in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal. Does the waiver of sovereign immunity in § 1702 apply to the claims presented in the present cases? The quoted provision was added to the National Housing Act by amendment in 1935. Act of August 23, 1935, c. 614, § 344(a), 49 Stat. 684, 722. The legislative history of this provision sheds no light on the manner in which it should be interpreted. See S.Rep.No.1007, 74th Cong., 1st Sess. (1935); H.R.Rep.No.1822, 74th Cong., 1st Sess. (1935). The “sue and be sued” clause of 12 U.S.C. § 1702 plainly waives sovereign immunity for some kinds of cases. It cannot sensibly be read in any other way, and this reading is confirmed in precedents. E. g., Federal Housing Administration v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940). In Burr, however, the Supreme Court held that the “sue and be sued” clause of § 1702 is a limited waiver, authorizing the suit in that instance against the agency, but limiting recovery to funds in the possession and control of the agency. Where recovery would require funds from the public treasury, on the other hand, the suit is one against the United States, Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947), and does not come within the limited waiver of sovereign immunity contained in § 1702. Marcus Garvey Square, Inc., v. Winston Burnett Construction Co., 595 F.2d 1126 (9th Cir. 1979); DSI Corp. v. Secretary of HUD, 594 F.2d 177 (9th Cir. 1979). See Burr, 309 U.S. at 250, 60 S.Ct. at 492. Cf. Waylyn Corp. v. United States, 231 F.2d 544 (1st Cir.), cert. denied, 352 U.S. 827, 77 S.Ct. 40, 1 L.Ed.2d 49 (1956). In this case it is not alleged that HUD holds any" }, { "docid": "17767155", "title": "", "text": "filed the present action on October 15, 1982. The St. Lawrence Seaway Development Corporation and its administrator have moved to dismiss the claim against them as time barred. The federal defendants contend that plaintiffs’ Fifth Amendment claim is in reality a suit against the United States under the Tucker Act, 28 U.S.C. § 1346(a)(2), and that the six-year statute of limitations of 28 U.S.C. § 2401(a) applies. According to the federal defendants, plaintiffs’ claim against the Corporation is barred because it was filed more than six years after plaintiffs’ land was flooded. Plaintiffs, however, argue that the “sue and be sued” clause in the Corporation’s charter allows plaintiffs to sue the St. Lawrence Seaway Development Corporation on the same terms as a private litigant. They contend that no statute of limitations applies. DISCUSSION A motion to dismiss will be granted only if it appears beyond doubt that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957); Dwyer v. Regan, 777 F.2d 825, 829 (2d Cir.1985). The court’s review is confined to the face of the complaint and any documents incorporated in the complaint by reference. Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). The court must assume that the facts in the complaint are true and draw all reasonable inferences in the plaintiffs’ favor. Dwyer, 777 F.2d at 829; Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 54 (2d Cir.1985). The issue before the court is whether plaintiffs’ claim against the federal defendants is in fact against the United States and thus time barred. A suit, however captioned, is one against the government if “the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration.” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947); Blackburn v. Goodwin, 608 F.2d 919, 923 (2d Cir.1979). Courts will" }, { "docid": "14507695", "title": "", "text": "judgment against the Secretary establishing plaintiff’s entitlement can be paid out of money in the General Insurance Fund that is a separate fund in the control and possession of the Secretary. See Trans-Bay Engineers & Builders, Inc. v. Hills, 179 U.S.App.D.C. 184, 551 F.2d 370 (D.C.Cir.1976) (Special Risk Insurance Fund supporting High Risk Insurance Program of 12 U.S.C. § 1715z-1 (1976) was separate fund in control and possession of Secretary for purposes of sovereign immunity under 12 U.S.C. § 1702); S. S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 35 (2d Cir. 1979) (claim involving 12 U.S.C. § 1715z-1 program held to be against Secretary of Housing and Urban Development because judgment for plaintiff could be paid out of High Risk Insurance Fund appropriated under National Housing Act and in control or subject to the discretion of the Secretary). The judgment would not “ ‘expend itself in the public treasury,’ ” Dugan v. Rank, supra, 372 U.S. at 620, 83 S.Ct. at 1006, quoting Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947), but on funds in the accounts of the government’s officers charged with HUD’s application of funds. The Section 1702 “sue and be sued” clause also requires that the lawsuit relate to the Secretary’s duties under the National Housing Act, for it authorizes suit against the Secretary only in his “official capacity” of “carrying out the provisions . . . ” of the Act. See Federal Housing Administration v. Burr, 309 U.S. 242, 248, 60 S.Ct. 488, 492, 84 L.Ed. 724 (1940). Suit by a building contractor’s surety and assignee over payment for construction work on a housing project insured by the Secretary in a program authorized by the National Housing Act clearly satisfies this criterion. See Bor-Son Building Corp. v. Heller, 572 F.2d 174, 179-81 (8th Cir. 1978) (“ ‘in carrying out’ clause in [§ 1702] waiver [of sovereign immunity] is not to be disregarded. . ” but is satisfied by contractor’s suit against Secretary in connection with construction work on federally insured housing project). Sovereign immunity was" }, { "docid": "17757785", "title": "", "text": "state a claim under the National Housing Act. IY. The contract theories present difficult jurisdictional problems. These difficulties arise because two separate distinctions must be made, and are often confused in the case law. In order for the district court to hear this case on the merits, there must be both a waiver of sovereign immunity and a grant of jurisdiction to the district court. Sometimes both a grant of jurisdiction and a waiver of immunity are contained in one statute, for example the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491, but this is not always the case. In addition to distinguishing between a grant of jurisdiction and a waiver of sovereign immunity, a distinction must also be made between suits against the United States and suits against the federal defendants. This distinction is required by the Supreme Court’s analysis in FHA, Region 4 v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940). In FHA, Region 4 v. Burr, supra, the Court held that the sue or be sued clause (presently 12 U.S.C. § 1702) meant that the FHA was subject to garnishment. However, the Court added that while suit was jurisdictionally proper against the agency, recovery could only be had from funds in the possession and control of the agency, not from the United States treasury. In Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) and Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947), the Court held that where recovery had to come from the public treasury, the suit was in reality against the United States. Therefore the first matter which must be resolved is whether there are funds in the possession and control of the agency which Burnett can point to for its recovery. If such funds exist, this is a suit against the federal defendants. If not, this is a suit against the United States. Two possible sources for such funds have been suggested. One is the Special Risk Insurance Fund established by 12 U.S.C. § 1715z-3. As discussed in part III of the" }, { "docid": "15079982", "title": "", "text": "it lacked jurisdiction, it will be unnecessary for us to reach the merits of appellants’ causes of action. As noted above, appellants’ sole basis for asserting that their action is jurisdictionally proper is the “sue and be sued” clause of the National Housing Act, 12 U.S.C. § 1702. The causes pressed by appellants sound in both tort and contract. For reasons which will become apparent, before analyzing either aspect of the causes we must make the determination of whether this suit is against the Secretary or against the United States. Two decisions of the Supreme Court, Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) and Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947), have established the rule that where recovery has to be made from the treasury, a suit is actually against the United States. If recovery may be had from separate funds within the possession and control of the Department of Housing and Urban Development, then this suit is in fact against the Secretary. See Federal Housing Administration, Region 4 v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940). Appellants contend that funds exist within the possession and control of the Department of Housing and Urban Development from which they can collect damages without diminishing the treasury. Appellants direct our attention to the Regulatory Agreement executed with the Federal Housing Commissioner. Any separate funds which were available under this agreement ceased to exist when the Secretary took assignment of the mortgage on October 28, 1968. See Marcus Garvey Square, Inc. v. Winston Burnett Construction Co., Inc., 595 F.2d 1126 (9th Cir. 1979). As a result, any potential recovery by appellants will have to come from the United States Treasury. For this reason, we must conclude that the present suit is actually against the United States. Tort claims against the United States are exclusively cognizable under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2679(a). Safeway Portland Employees’ Federal Credit Union v. Federal Deposit Insurance Corp., 506 F.2d 1213 (9th Cir. 1974). In this case, even" } ]